IN THE CASE OF:	  

		BOARD DATE:	       16 September 2008

		DOCKET NUMBER:  AR20080009000 


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 reentry (RE) code on his corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 5 May 1988 be changed.  

2.  The applicant states that he would like to have his RE code changed to reenlist in the military.  He further states that he went to the Army Discharge Review Board (ADRB) and that the ADRB removed the drug reference from his record.  He is in the process of trying to get into the Army Reserve or the National Guard and needs his records changed.

3.  The applicant provides a memorandum from the ADRB, dated 14 May 1994.

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 3 December 1985 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).

3.  On 16 February 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine.

4.  On 25 March 1988, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – Abuse of Illegal Drugs.  The reasons cited by the commander was the applicant receiving a field grade Article 15 for illegal use of cocaine.  The applicant was advised of his rights and the commander recommended the applicant receive a under other than honorable conditions discharge.  The applicant was afforded the opportunity to consult with counsel.  

5.  On 7 April 1988, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant indicated that he was counseled by appropriate counsel and that he would waive a hearing by a board of officers if he received a discharge of at least general under honorable conditions.  The applicant also indicated that he submitted a statement on his own behalf.  His statement is not available.

6.  On 18 April 1988, the appropriate authority approved the elimination packet and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct-Abuse of Illegal Drugs.  On 5 May 1988, the applicant was separated from the service after completing 2 years, 5 months, and 3 days of creditable active service with no lost time.

7.   The applicant's DD Form 214 with the period ending 5 May 1988 shows he was discharged under the provisions of paragraph 14-12c, Army Regulation 
635-200, for "MISCONDUCT-DRUG ABUSE"; and item 27 (Reentry Code) shows the entry "3."

8.  On 23 May 1994, the ADRB found that the separation authority and narrative reason for separation for the applicant’s discharge were inequitable and voted    to change the separation authority to Army Regulation 635-200, paragraph       14-12c(2) and the narrative reason for separation to "Misconduct."  The ADRB based their action on regulations currently in effect listing the narrative reason for the applicant's discharge as misconduct.  


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.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense and that abuse of illegal drugs is serious misconduct.  
  
10.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 3-21 of the regulation states that RE-3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

11.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his RE code changed on his DD Form 214 in order to enter the Army Reserve or the National Guard.  However, the ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE-3 code assignment.  Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE-3 code was appropriate.  

2.  However, this does not mean that the applicant has been completely denied the opportunity to enlist.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process a waiver request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  __xx____  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.




      _______ xxxxx______   ___
               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)                                         AR20080009000





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ABCMR Record of Proceedings (cont)                                         AR20080009000



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