IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080011419 


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 her reentry eligibility (RE) code of RE-4 be upgraded to RE-3. 

2.  The applicant states that when she was applying for enlistment, her Army Recruiter told her that her separation document (DD Form 214) had the wrong RE code.  The applicant stated she has seen similar discharges with an RE code of RE-3.  The applicant states that she was told by "JAG" when she was being processed for discharge that although she was discharged with a general discharge under honorable conditions she would be allowed to return to Active Duty after a period of 2 years, if she reapplied for enlistment.  She feels that her chain of command had failed her by allowing her to sign her way out of the Army. The RE-4 is the only thing standing in her way of continuing to serve her country.

3.  The applicant provides a copy of her DD Form 214.

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 personnel record shows she enlisted in the Regular Army on 15 August 2000.  She completed the necessary training and was awarded the military occupational specialty (MOS) 88K (Watercraft Operator).   

3.  On 3 December 2003, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.

4.  On 15 October 2004, for the second time the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for wrongful use of marijuana.

5.  On 18 November 2004, the applicant's commander recommended her for separation under the provisions of Army Regulation 635-200 (Personnel Separation), Chapter 14, paragraph 14-12c(2) for misconduct.  

6.  She was advised of the rights available to her and the effects of a discharge under honorable conditions.  She was also informed that she would be ineligible to apply for enlistment in the United States Army for a period of two years after discharge, and that she may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, she acknowledged she realized that an act of consideration by either board does not imply that her discharge would be upgraded.  She waived personal appearance before an administrative separation board, and did not submit any statement in her own behalf.

7.  On 18 November 2004, her commander recommended that she receive a general discharge and her service be characterized as under honorable conditions.

8.  On 1 December 2004, the applicant's commander's recommendation for separation was approved by the appropriate authority.

9.  On 28 January 2005, the applicant was given a general discharge from active duty for misconduct.  She was assigned a separation program designator (SPD) code of JKK and assigned an RE code of RE-4.  She had completed  
4 years, 5 months, and 14 days of Net Active Service This Period.


10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.

11.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation 601-210 states that an RE-4 applies to persons separated from last period of service with a non-waivable disqualification.

12.  AR 635-5-1 (Separation Program Designated Codes), Table 2-3, states that the SPD code JKK denotes involuntary discharge by reason of misconduct (Drug Abuse).

13.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows that an SPD code of JKK is assigned an RE code of RE-4.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that her RE-4 be upgraded to RE-3. 

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged for misconduct.

3.  Since the applicant was properly discharged, there is no reason to change a correctly assigned RE code.

4.  The applicant's record contains no evidence to show that "JAG" told her that although she was discharged with a general discharge under honorable conditions she would be allowed to return to Active Duty after a period of 2 years, 
if she reapplied for enlistment.  Evidence shows that the applicant acknowledged she could make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading.  However, she realized that an act of consideration by either board does not imply that her discharge would be upgraded.

5.  While the applicant was told in her waiver statement that she would be ineligible to apply for enlistment for 2 years after discharge, this statement did not state that she would be accepted for enlistment after 2 years.  That decision has to be made at the time of application for enlistment based on the needs of the Army.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080011419



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ABCMR Record of Proceedings (cont)                                         AR20080011419



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