IN THE CASE OF:	   

		BOARD DATE:	         21 August 2008 

		DOCKET NUMBER:  AR20080008050 


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, in effect, that his Reentry Eligibility (RE) code of 
RE-4 be changed to a more favorable code.  He also requests that his separation code of “JKK” be changed so that he can reenter the U.S. Army.  He also requests his "bar to reenlistment be removed."  However, there is no evidence of record to show he had a bar to reenlistment and it is presumed that by using the term "bar to reenlistment" he meant the Reenlistment code of RE-4.

2.  The applicant states, in effect, that he made two minor mistakes in his military career and has not been in trouble before or since then.  The applicant continues that his mistakes have followed him and ruined his life.  The applicant adds that he is now unable to serve his country in its time of need and considers it to be wrong and unjust.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this 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 enlisted in the Regular Army on 19 October 1995 for a period of three years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).

3.  The applicant's records show he received the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Qualification Badge with Grenade Bar, and the Parachutist Badge.

4.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  The record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 July 1997, for wrongfully using marijuana between on or about 27 April 1997 and on or about 27 May 1997.  His punishment consisted of a reduction to private E-2; a forfeiture of $505.00 pay per month for 2 months; extra duty for 45 days; and restriction for 45 days.

5.  On 27 October 1997, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior commissioned officer and going absent without leave (AWOL) from on or about 29 September 1997 until on or about 
2 October 1997.  His punishment consisted of a reduction to private E-1; a forfeiture of $450.00 per month for two months; restriction for 14 days; and extra duty for 14 days.  

6.  On 26 November 1997, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense/drug abuse.  He was advised of his rights.  

7.  On 9 December 1997, the applicant acknowledged notification of separation action.  He requested consult with legal counsel and did not submit statements in his own behalf.


8.  On 12 December 1997, the intermediate commander recommended approval of the separation action with a General Discharge Certificate and forwarded the action to the separation authority.

9.  On 16 December 1997, the separation authority directed that the applicant be discharged from active duty under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct and issued a General Discharge Certificate.  

10.  The applicant's DD Form 214, dated 31 December 1997 shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 
14-12c(2) for misconduct and issued a general under honorable conditions discharge.  He completed 2 years, 2 months, and 12 days of active military service during the period under review.  The highest rank the applicant held was private first class/pay grade E-3.  His DD Form 214 shows he was discharged with a separation code of "JKK" (Misconduct-Drug Abuse) and was issued an RE code of RE-4.

11.  On 4 March 2008, the Army Discharge Review Board (ADRB) denied the applicant's request for upgrade of his discharge.  The ADRB determined that the general under honorable conditions discharge was proper. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, showed that the SPD code “JKK” as shown on the applicant’s DD Form 214
specified the narrative reason for separation as involuntary release or transfer for “Misconduct-Drug Abuse” and that the authority for separation under this separation program designator was “AR 635-200, Chapter 14.”  Additionally, the SPD/RE Code Cross Reference Table, Army Regulation 635-5 (Separation Documents) established RE code 4 as the proper reentry code to assign to Soldiers separated for this reason.  


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.  

15.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is non-waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE code of RE-4 should be changed to a more favorable code.  He also requests that his separation code of “JKK” be changed so that he can reenter the U.S. Army.

2.  The applicant was discharged on 31 December 1997 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct-drug abuse.  The evidence of record shows he received an Article 15 for wrongfully using marijuana, and a second Article 15 for disobeying a lawful order and being AWOL.

3.  The applicant's DD Form 214 shows he was separated with a separation code of "JKK" and was assigned an RE code of RE-4 which is not waivable in accordance with the governing regulation in effect at the time.  

4.  There is no evidence of record which shows the reentry code or separation code issued to him was in error or unjust.  

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)                                         AR20080008050



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ABCMR Record of Proceedings (cont)                                         AR20080008050



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