IN THE CASE OF:	  

		BOARD DATE:	16 September 2008 

		DOCKET NUMBER:  AR20080010752 


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 be changed from RE-4 to RE-3 to allow him to reenlist.

2.  The applicant states, in effect, that he was advised at the time of his discharge that he had to wait 2 years before he was eligible to reenlist. 

3.  The applicant provides no additional documentary evidence in support of his request.

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 military records show he enlisted in the Army Delayed Entry Program on 19 June 2000.  He enlisted in the Regular Army, in pay grade E-1, on 12 July 2000, for 4 years.  He was promoted to pay grade E-4 on 1 May 2002.

3.  A Report of Mental Status Evaluation, dated 8 July 2003, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, a doctor of medicine, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  The evaluating psychiatrist also opined that the applicant was mentally responsible and met retention requirements of Army Regulation 40-501, Chapter 3.  He also stated that the evaluation consisting of a clinical interview/psychometric testing indicated the applicant carried the following diagnosis:  Cocaine dependence-continuous, Methamphetamine abuse-episodic, and Marijuana abuse-episodic.  He found the applicant’s current potential for self-harm was low.

4.  On 30 September 2003, a Charge Sheet (DA Form 458) was prepared by the Commander, 269th Signal Company, 504th Signal Battalion, 11th Signal Brigade, Fort Huachuca, Arizona.  The applicant was charged with two specifications of failing to go at the time prescribed to his appointed place of duty on 22 July and 20 August 2003; one specification of willfully disobeying a lawful command on 22 August 2003; and one specification of making a false statement with the intent to deceive on 22 August 2003.

5.  On 16 October 2003, the applicant, after consulting with counsel, acknowledged the contemplated action to separate him for patterns of misconduct with a UOTHC discharge.  He waived his rights to appear before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

6.  On 23 October 2003, the applicant was notified of Summary Court-Martial Proceedings against him.  He acknowledged the notification on 24 October 2003.

7.  On 24 October 2003, the applicant’s unit commander initiated action to separate him for Misconduct, Abuse of Illegal Drugs, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  The commander stated that the applicant had wrongfully used controlled substances on multiple occasions, to wit:  Cocaine, marijuana, and methamphetamines; had failed to 
report on several occasions, and disobeyed his superior commissioned officer; therefore, the applicant was no longer considered compatible for continued military service.  The commander recommended the applicant be issued an Under Other Than Honorable Conditions (UOTHC) discharge.  

8.  On 12 November 2003, the applicant’s unit commander recommended that he be separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, with an UOTHC discharge.

9.  On 24 November 2003, the applicant was determined qualified for separation and his unit commander recommended he be separated from the Army prior to his expiration term of service date under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-12c.  On the same day, the appropriate separation authority approved the applicant’s discharge.

10.  The applicant was discharged on 26 November 2003, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 
14-12C, for Misconduct, with an UOTHC discharge.  He was credited with completing 3 years, 4 months, and 15 days of total active service.  Item 26 (Separation Code), of his DD Form 214 states "JKQ" and Item 27 (RE Code) states "RE-4."  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribed procedures for separating personnel for misconduct because of a commission of a serious offense.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

12.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE Codes, based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provided that RE Codes could be changed only if they are determined to be administratively incorrect.  

13.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 4 are ineligible for enlistment.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

14.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes will be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

15.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons.  The regulation shows that the SPD of “JKQ” as shown on the applicant’s DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is “Misconduct” and the authority for discharge is Army Regulation 635-200, Chapter 14-12c. 

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows SPD codes with their corresponding RE code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “JKQ” has a corresponding RE Code of “3.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged on 26 November 2003, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  He was issued a Separation Code of "JKQ" that has a corresponding RE Code of "3."  However, his DD Form 214 shows an RE Code of "4." 

2.  The applicant's RE Code of "4" is not consistent with the basis for his separation.  Therefore, it is recommended that the applicant's records be corrected to show the RE Code of "3" which is consistent with the basis for his separation.  It would now be appropriate to change item 27, of his DD Form 214, to show a reentry code of "3."

3.  It is apparent that the applicant now wishes to reenter the military and would like to continue to serve the nation; however, his currently shown RE Code of "4" prevents him from reenlisting.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.




BOARD VOTE:

___x____  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a reentry code of "3" in item 27 (Reentry Code) of his DD Form 214, dated 26 November 2003.




      _______ _  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)                                         AR20080010752



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ABCMR Record of Proceedings (cont)                                         AR20080010752


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