RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 August 2007
      DOCKET NUMBER:  AR20070004512


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Flemings          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reentry (RE) code be
changed to one that would allow his reenlistment.

2.  The applicant states, in effect, he does not believe the code is in
error or unjust; however, he does believe that he has shown upstanding
character in the 18 years since his discharge and deserves another chance
to prove he is worthy of wearing the uniform once again.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 April 1984, the date of his discharge.  The application
submitted in this case is dated 6 February 2007.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 23 January 1987.  He was trained in, awarded, and
served in military occupational specialty (MOS) 92B (Medical Laboratory
Specialist) and the highest rank he attained while serving on active duty
was specialist (SPC).  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

4.  On 17 May 1989, a Special Court-Martial (SPCM) found the applicant
guilty, pursuant to his plea, of violating Article 112a of the Uniform Code
of Military Justice (UCMJ) by wrongfully distributing .158 grams of cocaine
on or about
7 March 1989.  The resultant sentence was a bad conduct discharge (BCD),
confinement for four months, forfeiture of $466.00 per month for four
months, and reduction to private/E-1 (PV1).

5.  The appellate review was completed and on 12 April 1990, the applicant
was discharged accordingly.  The separation document (DD Form 214) he was
issued upon his discharge confirms he received a BCD under the provisions
of chapter 3, Army Regulation 635-200, by reason of court-martial.  Based
on the authority and reason for discharge, the applicant was assigned a
Separation Program Designator (SPD) code of JJD and an RE code of RE-4.
The DD Form 214 also confirms he completed a total of 2 years, 11 months
and 11 days of creditable active military service and accrued 99 days of
time lost due to confinement.

6.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulates, in pertinent part, that a Soldier would be given
a BCD pursuant only to an approved sentence of a general or special court-
martial and that the appellate review must be completed and affirmed before
the sentence is ordered duly executed.

7.  Army Regulation 601-210 covers eligibility criteria, policies, and
procedures for enlistment and processing into the Regular Army (RA) and the
United States Army Reserve (USAR).  Chapter 3 of that regulation prescribes
basic eligibility for prior service applicants for enlistment.  That
chapter includes a list of armed forces RE codes, including RA RE codes.
RE-4 applies to persons who have a nonwaivable disqualification.

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JJD is the appropriate code to assign
to Soldiers separated under the provisions of chapter 3, Army Regulation
635-200, by reason of
court-martial.  The SPD/RE Code Cross Reference Table indicates that RE-4
is the proper code to assign members separated with SPD code KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change to his RE code was carefully
considered. However, while his excellent post service conduct is admirable,
this factor alone is not sufficiently mitigating to support granting the
requested relief.

2.  By regulation, RE-4 is the proper reentry code to assign members
separated under the provisions of chapter 3, Army Regulation 635-200, by
reason of court-martial, who are assigned an SPD code of JJD.

3.  The evidence of record confirms the applicant was separated under the
provisions of chapter 3, Army Regulation 635-200, by reason of court-
martial based on a SPCM conviction for distributing illegal drugs.  It also
shows that based on the authority and reason for his discharge, he was
appropriately assigned a SPD code of JJD.  Therefore, the RE-4 code he was
assigned at the time of his discharge was and remains valid.  Given his
unremarkable record of service and the severity of the offense for which he
was convicted, there is an insufficient evidentiary basis to support change
to his RE code at this time.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 April 1990, the date of his
discharge. Therefore, the time for him to file a request for correction of
any error or injustice expired on 11 April 1993.  He failed to file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS _  __EIF ___  __RJF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004512                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/07                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1990/04/12                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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