RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2007
      DOCKET NUMBER:  AR20070010192


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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.


2.  The applicant states, in effect, that at the time he failed his drug
test he was a specialist team leader in an infantry platoon, his future was
bright and he was primed for a great career in the Army.  He states that he
made a stupid decision, which he has paid for in the past 7 plus years.  He
states that he can not watch the news any longer without feeling shame and
guilt for not being able to do his part in a noble fight.  He states that
he is not asking anyone to feel sorry for him and is simply asking that his
RE code be rectified so he can prove to the Army and himself that he is a
good Soldier.  He claims his life is in perfectly good order and he is
successful in his job; however, being kicked out of the Army still defines
him in his own eyes.  He states that he understands he messed up, but the
punishment was too harsh.  He further states that he knows what he did was
horribly wrong, but it was a victimless crime and the same offense was
committed in his battalion at least 4 times in two years and he was the
first that was processed for separation.  He claims his record was spotless
before this happened and achieved the rank of specialist (SPC) in less than
two and one half years.  He states that his chain of command fought hard to
keep him in and the RE code he was assigned was a mistake.  He states that
he has seen others stay in with the same infraction and this fact coupled
with his clean record makes the RE code assignment unjust.

3.  The applicant provides no additional documentary evidence in support of
the 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 enlisted in the Regular Army and
entered active duty on 14 October 1997.  He was trained in and awarded
military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman)
and SPC was the highest rank he attained while serving on active duty.

3.  The applicant's record shows that he earned the Army Service Ribbon and
the Marksman Marksmanship Qualification Badge with Rifle Bar during his
active duty tenure.  His record documents no acts of valor, significant
achievement or service warranting special recognition.

4.  On 17 February 2000, the applicant accepted NJP under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully
using cocaine.  His punishment for this offense was a reduction to
private/E-1, forfeiture of $502.00 per month for 2 months, and 45 days of
restriction and extra duty.

5.  On 11 May 2000, his unit commander notified the applicant of his intent
to initiate action to separate him under the provisions of Paragraph 14-
12c, Army Regulation 635-200, by reason of misconduct-commission of a
serious offense (drug abuse).  The unit commander cited the applicant
testing positive for the use of cocaine as the reason for taking the
action, and recommended the applicant receive a general, under honorable
conditions discharge (GD).

6.  On 12 May 2000, the applicant consulted with legal counsel and was
advised of the basis of the contemplated separation action and its effects,
and of the rights available to him.

7.  On 16 May 2000, the separation authority approved the applicant's
separation and directed he receive a GD.  On 9 June 2000, the applicant was
discharged accordingly.  The separation document (DD Form 214) issued to
the applicant at the time shows that he was separated under the provisions
of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-
commission of a serious offense.  It also shows that based on the authority
and reason for his discharge, he was assigned a Separation Program
Designator (SPD) code of JKK in Item 26 (Separation Code) and an RE code of
4 in Item 27 (Reentry Code).  It also confirms that at the time of his
discharge he held the rank of PV1 and had completed a total of 2 years, 7
months, and 26 days of active military service.

8.  On 22 August 2003, the Army Discharge Review Board (ADRB), after
carefully examining the applicant's record of service, determined that the
characterization of his service was inequitable and voted to upgrade his GD
to a fully honorably discharge.  The ADRB also voted to change the
narrative reason for his discharge from "Misconduct-Commission of a Serious
Offense" to "Misconduct" under current standards; however, the ADRB found
the authority for the applicant's separation was proper and equitable and
it noted that he was appropriately assigned an RE code of 4 based on his
abuse of illegal drugs, which was a permanent disqualification for
reenlistment.

9.  The applicant was issued a new DD Form 214 based on the ADRB action,
which shows he was honorably discharged under the provisions of Chapter 14,
Army Regulation 635-200, by reason of Misconduct.  The corrected separation
document still retained the SPD code JKK in Item 26 and the RE code of 4 in
Item 27.

10.  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.

11.  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 JKK is the appropriate code to assign to
Soldiers separated under the provisions of Paragraph 14-12c, by reason of
commission of a serious offense (drug abuse).  The SPD/RE Code Cross
Reference Table indicates that RE-4 is the proper code to assign members
separated with SPD code JKK.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE-4 code he received was unjust
and too harsh based on his one time offense was carefully considered.
However, by regulation, RE-4 is the proper reentry code to assign members
separated based on the use of illegal drugs who are assigned an SPD code of
JKK.

2.  The evidence of record confirms the applicant was separated based on
his use of cocaine and that based on the authority for his separation, he
was appropriately assigned an SPD code of JKK in accordance with the
applicable regulation.  Therefore, the RE-4 code he was assigned was and
remains valid.

3.  The good record of service alluded to by the applicant was
appropriately recognized by the ADRB action upgrading his discharge to
fully honorable.  However, based on his drug-related infraction, he was
properly assigned the
RE-4 code in accordance with current Army policy, which requires the
permanent disqualification from reenlistment of those members separated
based on the use of illegal drugs.  As a result, there is an insufficient
evidentiary basis to support granting the requested relief.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __RML  _  __EEM__  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.




                                  ____Kathleen A. Newman____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070010192                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2000/06/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct (drug abuse)                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]