IN THE CASE OF:	  

		BOARD DATE:	        17 September 2008

		DOCKET NUMBER:  AR20080010388


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 reentry (RE) code of “4” be changed to at least RE-3.

2.  The applicant states he wants to join the National Guard and his RE-4 code prevents it.  He wants to serve his country again and he regrets his past mistakes.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge From Active Duty) and his General Discharge Certificate.

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 for 6 years on 28 August 2001.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  he was assigned to Company A, 3rd Battalion, 21st Infantry Regiment (Gimlets), Fort Lewis, WA.

3.  A random unit urinalysis test revealed that, between 4 November and
4 December 2002, the applicant used marijuana.  He was offered and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 4 January 2003.  As punishment for wrongfully using marijuana he was reduced from private (PVT/E-2) to private (PVT/E-1), made to forfeit $575.00 pay per month for 2 months (suspended, to be automatically remitted if not vacated before 15 April 2003), restricted for 45 days, and made to perform extra duty for 45 days.

4.  On 10 April 2003, the applicant's company commander initiated action to discharge him with a General Discharge for misconduct under the provisions of Army Regulation 635-200, chapter 14.  He acknowledged receipt of notification on the same date.

5.  On 14 April 2003, the applicant consulted with legal counsel and acknowledged that he understood the basis for the contemplated administrative separation, the effects of such an action, and the rights available to him.  He also acknowledged the possible effects of a general discharge.  He declined to submit a statement in his own behalf.

6.  On an unknown date, the applicant's company commander forwarded his recommendation for discharge through the chain of command to the approving authority.  On 22 April 2003, the approving authority approved the request and directed the applicant be issued a General Discharge Certificate.

7.  The applicant was discharged on 7 May 2003.  He had 1 year, 8 months, and 10 days of creditable service on his 6-year enlistment.  His DD Form 214 shows the separation authority as "AR 635-200, PARA[GRAPH] 14-12C(2)."  The narrative reason is shown as "MISCONDUCT" and the Separation Program Designator (SPD) Code is shown as "JKK."  The RE code is shown as "4" which means ineligible to reenlist.

8.  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 Army.  Chapter 3 
prescribes basic eligibility for prior service applicants for enlistment, and includes a list of armed forces RE codes.  RE-4 applies to individuals who are ineligible to reenter the Army.

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.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1, establishes RE Codes to be assigned for each SPD code.  SPD "JKK" is used for RA Soldiers discharged under the provisions of chapter 14, AR 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of RE-4 is the correct code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant would like his RE code changed to one that would permit him to join the National Guard.

2.  The applicant was discharged from the Regular Army for misconduct because he violated Army rules, regulations, and policies by abusing illegal drugs.  Use of illegal drugs is completely counter to Army values and the expected behavior of Soldiers and renders the applicant unfit for future service.

3.  The applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time, and the character of his discharge is appropriate to his misconduct and commensurate with his overall record of military service.

4.  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

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080010388



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ABCMR Record of Proceedings (cont)                                         AR20080010388



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