IN THE CASE OF:
BOARD DATE: 21 August 2008
DOCKET NUMBER: AR20080009902
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 (RE) code of RE-3 be changed to a more favorable RE code so that he can rejoin the military.
2. The applicant states that his platoon sergeant changed the date of his drug and alcohol class at the time he was being discharged from the military. When he finally received the order, he was unable to complete the class. As a result, he could not join the military.
3. The applicant provides no additional documents 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 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 enlisted in the Regular Army on 21 May 1999. At the completion of basic training and advanced individual training, he was awarded military occupational specialty 88M (motor transport operator).
3. The applicant tested positive for marijuana on 19 March 2002.
4. On 10 July 2002, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana between 20 February 2002 and 19 March 2002.
5. The applicant was discharged on 14 February 2003 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct. He completed 3 years, 8 months, and 24 days of total active military service.
6. His DD Form 214 shows he was discharged with a separation code of "JKK" (Misconduct) and was issued an RE code of RE-3.
7. 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 shows that the SPD code JKK as shown on the applicants DD Form 214 specifies the narrative reason for separation as involuntary release or transfer for Misconduct and that the authority for separation under this separation program designator is
AR 635-200, paragraph 14-12c(2).
8. Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), in effect, at the time, established RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes 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 will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.
10. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.
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 was discharged on 14 February 2003 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct.
2. The applicants DD Form 214 shows he was assigned an RE-3 in accordance with regulations in effect at the time. The RE code reflect that the applicant was not eligible for reenlistment without a waiver because he was discharged under the provisions of Army Regulation 635-200, chapter 14 and because he had received an Article 15 for wrongfully using marijuana.
3. The applicant's statements were noted. However, he has provided no evidence which shows the RE code issued to him was in error or unjust. Since the applicants disqualification is waivable, 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.
________xxxx__________
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) AR20080009902
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