IN THE CASE OF:
BOARD DATE: 17 July 2008
DOCKET NUMBER: AR20080006810
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his reenlistment eligibility (RE) code be upgraded.
2. The applicant states when he was discharged he was under the impression that he should have been able to reenlist but has been advised that with an RE code of 4 he cannot. He would like to serve again and hopes that the foolish mistake he made in the past will not prevent him from serving his country.
3. The applicant provides no supporting documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant entered active duty on 12 August 2003, completed basic training but did not complete advanced individual training.
3. On 24 January 2004 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave for three days.
4. On 26 February 2004 the applicant received NJP for use of marijuana on two dates.
5. The applicant's unit commander initiated discharge proceedings under the provisions of Army Regulation 635-200, paragraph 14-12C for the commission of a serious offense.
6. On 9 March 2004, the applicant acknowledged the proposed discharge and waived his right to consult with counsel or make a statement on his own behalf.
7. The discharge authority approved the discharge and directed that the applicant receive a General Discharge.
8. The applicant was discharged on 12 March 2004 under honorable conditions (General). His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12C(2) with a separation code of JKK and an RE code of 4.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specifically paragraph 14-12c is for a pattern of misconduct, commission of a serious offense, conviction by civil authorities, absence without leave, or other actions that a punitive discharge is authorized under the UCMJ. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
10. 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 JKK is the appropriate code to assign to Soldiers separated under the provisions of chapter 14-12C, Army Regulation 635-200, by reason of commission of a serious offense. The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper RE code to assign members separated with this SPD code.
11. The Manual for Courts-Martial provides (Rule for Courts-Martial 1003d3) that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months, may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized. The Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86, for a periods of AWOL of 30 days or more, and Article 112a, for wrongful use of controlled substances.
DISCUSSION AND CONCLUSIONS:
1. The applicant did not commit a single offense as he infers in his statement. He illegally used marijuana on at least two dates and was AWOL on three occasions (a total of 30 days).
2. The applicant's RE code is directly tied to the reason he was discharged. There is no error in the discharge process and there does not appear to be any basis for removal or correction of the reason for his separation. Hence, no correction of the RE code is warranted.
3. 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
___X____ ___X ___ ___X____ 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.
_ _______ X______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080006810
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ABCMR Record of Proceedings (cont) AR20080006810
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