RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070008298 


	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

Ms. Judy Blanchard

Analyst


The following members, a quorum, were present:


Mr. Frank C. Jones

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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, an upgrade of his reentry (RE) code of RE-4 to allow reenlistment.  

2.  The applicant states, in effect, that he would like his reentry code changed so that he can get back in the Armed Forces.  He further states, that since being discharged from the Army he has worked two jobs for over a year.  He worked at the A.P.L. Security, posting at a high end Jewelry store.  He was offered another position at the jewelry store which he is currently employed and he has already received a very good rating on his yearly performance appraisal and a raise.  He has a family now, a fiancé and two sons that he is responsible for and loves dearly.  He was very young at the time of his infraction and simply made a mistake for which he is truly sorry.

3.  The applicant provides in support of his application a letter to his commander, his Certificate of Release or Discharge From Active Duty (DD Form 214),a copy of his DA Form 2166-8 (Noncommissioned Officers Evaluation Report) for the periods of 200005 – 200104 and from 200205-200304) and Performance Appraisal from the Bvlgari Jewelry Store in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that he initially enlisted in the Regular Army and entered active duty on 16 October 1997.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  From October 1997 through June 2002, the applicant’s military record his does not contain any adverse information and the noncommissioned officer’s evaluation reports were “excellent.”  The highest grade he attained was pay grade E-6.   

3.  On 12 August 2002, the applicant’s urinalysis test returned positive for methamphetamines, there is no indication in his military record which indicates that he was punished for the offense.  On 24 November 2003, the applicant again tested positive for methamphetamines.  The applicant waived all rights to consultation with a lawyer.   

4.  On 3 December 2003, the applicant was counseled for the positive urinalysis for the use of drugs (D-Methamphetamines).  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  

5.  On 5 December 2003, the applicant accepted nonjudicial punishment, for the wrongful use of methamphetamines as proven by a chemical analysis.  His imposed punishment for this offense which included a reduction to pay grade 
E-5, a forfeiture of $1,019.00 pay per month for 2 months and 45 days of extra duty. 

6.  On 22 December 2003, the applicant received a counseling statement for being late for formation.  The applicant was counseled and again advised of the effects of his action. 

7.  On 29 December 2003, a Report of Mental Status Evaluation cleared the applicant for any administrative action deemed appropriate. 

8.  On 6 January 2004, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 
14 -12c, Army Regulation 635-200, by reason of Misconduct-Commission of a Serious Offense, with a discharge under honorable conditions.  The reason for the proposed action was the applicant’s wrongful use of methamphetamines and behavior that indicated a lack of acceptance of rehabilitative measures.  

9.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  



10.  On 8 January 2004, the appropriate authority approved the recommendation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14 for a commission of a serious offense and that he be furnished a General Discharge Certificate.

11.  On 4 February 2004, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of misconduct, with a discharge under other than honorable conditions (General).  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of sergeant/E-5, and he had completed a total 6 years, 3 months and 
19 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JKK and an RE code of RE-4.  

12.  The applicant's DD Form 214 document that the applicant was awarded Army Commendation Medal, the Army Achievement Medal (5th Award), the Army Good Conduct Medal, the National Defense Service Medal, the Non Commissioned Officer’s Professional Development Ribbon with Numeral 2, the Army Service Ribbon, the Overseas Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar.  The applicant authenticated his DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

13.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  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 are permanently disqualified for continued Army service.

15.  Army Regulation (AR) 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.  The SPD code of JKK is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 14-12c, by reason of misconduct.  

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the type of discharge received and the RE-4 code assigned were proper for a member separating under the provisions of Army Regulation 
635-200, for misconduct (Drug abuse). The applicant’s record shows that he violated the Army’s policy not to possess or use illegal drugs, which compromised the trust and confidence placed in a Soldier.  The applicant as a Soldier had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked a military career.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the assignment of his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  

3.  The applicant’s contentions regarding his good post-service conduct and achievements were also carefully considered.  While the applicant’s good post-service conduct is commendable, it is not so meritorious as to warrant an upgrade of his discharge. 

4.  RE-4 applies to persons who are permanently disqualified for continued Army service.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FJ____  ___CD___  __SF____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Frank C. Jones_____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.