IN THE CASE OF:	  

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080009421 


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, an upgrade of his reentry (RE) code. 

2.  The applicant states, in effect, that during the 4 months preceding his discharge, he found out a family member very dear to him was dying and that when he was faced with this news, he turned to alcohol and got involved with drugs.  Then given his inability to deal with the situation due to his immaturity, he went absent without leave (AWOL) to be with this dying family member who was so important to him.  After the death of this family member, he continued his drug use to escape the reality of the situation.  He states that with age comes wisdom, and he now understands he never should have done drugs and since that time in his life, he has not used drugs and rarely uses alcohol.  

3.  The applicant further states, in effect, that he now has a wonderful family and is successful in life and he is terribly sorry for his actions.  He claims that all he is asking for is the chance to right his wrongs.  He knows that if given the chance to prove himself, he can make a difference and do great things.  He states that he was not a bad Soldier; however, he had personal problems.  He claims that before that time he had no problems meeting and exceeding military standards.  He states that he wants nothing more than once again to wear the uniform and be a Soldier.  He asks to be given the chance to make things right, and that he may be eligible to reenlist.  

4.  The applicant provides a self-authored letter 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 enlisted n the Regular Army and entered active duty on 29 October 1996, and that he was trained in and awarded military occupational specialty (MOS) 19K (Armor Crewman).  

3.  The applicant’s record shows that he was promoted to private first class (PFC) on 1 July 1997, and that this is the highest rank he attained while serving on active duty.  His record also shows that during his active duty tenure, he earned the Army Service Ribbon and Expert Marksmanship Qualification Badge with Pistol and Grenade Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant’s disciplinary record includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 April 1998, for the wrongful use of marijuana and two specifications of absenting himself from his unit.  The resultant punishment was a reduction to private/E-1 (PV1), a forfeiture of $300.00 a month for 2 months, and 45 days of restriction and extra duty.  

5.  On 20 May 1998, his unit commander notified the applicant he was initiating action to separate the applicant under the provisions of Paragraph 14-12c, 
Army Regulation 635-200, for the commission of a serious offense, drug abuse, and that he was recommending the applicant receive a general, under honorable conditions discharge (GD).  

6.  On 29 May 1998, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights. Subsequent to this counseling, the applicant elected not to submit a statement in his own behalf.  
7.  On 3 June 1998, the separation authority approved the applicant's discharge under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (commission of a serious offense-drug abuse) and directed the applicant receive a GD.  On 26 June 1998, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time confirms 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).  The DD Form 214 further confirms that at the time of his discharge, he held the rank of PV1 and he had completed a total of 1 year, 6 months, and 28 days of active military service.  

8.  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. 

9.  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 request for a change to his RE code was carefully considered. However, although his desire to serve and his good post service conduct are noteworthy, these factors alone are sufficiently mitigating to support granting the requested relief.  

2.  By regulation, RE-4 is the proper reentry code to assign members separated under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct (drug abuse), who are assigned an SPD code of JKK.  


3.  The evidence of record confirms the applicant was separated under the provisions of Paragraph 14-12c, Army Regulation 635-200, by reason of misconduct-commission of a serious offense (drug abuse) based on his use of illegal drugs.  It also shows that based on the authority and reason for his discharge, he was appropriately assigned an SPD code of JKK.  Therefore, the RE-4 code he was assigned at the time of his discharge was and remains valid.  

4.  The applicant’s record of service is unremarkable and notwithstanding his desire to serve and his post service conduct, it does not support a change to his RE-4 code given his disciplinary history.  As a result, there is an insufficient evidentiary basis to support a change to his RE code at this time.  

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

____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)                                         AR20080009421



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ABCMR Record of Proceedings (cont)                                         AR20080009421



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