IN THE CASE OF:	  

		BOARD DATE:	  	  21 October 2008

		DOCKET NUMBER:  AR20080011450 


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.

2.  The applicant states, in effect, he was discharged without an opportunity to complete a drug rehabilitation program, feels he could have overcome the issue, and should have been able to complete the program to help rectify the problem he had at the time.  He also states that he is now married, has a child, and wants to serve his country like he originally intended to do.  The applicant adds that he was given a general discharge under honorable conditions, but he is not trying to get the discharge changed, just the RE Code so he may enlist in the U.S. Army.

3.  The applicant provides no additional documentary evidence.

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 service records show that he enlisted in the U.S. Army Reserve for a period of 8 years on 6 January 2004 and entered active duty in the Regular Army for a period of 3 years on 3 February 2004.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 14T (Patriot Missile Crewmember).  On 5 August 2004, the applicant was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 43rd Air Defense Artillery, 198th Air Defense Artillery Brigade, Fort Bliss, Texas.

3.  The applicant's records contain a DA Form 4856 (Developmental Counseling Form), dated 2 November 2004.  This document shows, in pertinent part, the applicant received event-oriented counseling based on the positive results of his urinalysis test that was conducted in August 2004. This document also shows the applicant was informed that abusing, using, and distributing illegal or controlled substances will not be tolerated and is punishable under the Uniform Code of Military Justice (UCMJ).  The applicant was also advised that, if his substandard conduct continued, action may be initiated to separate him from the Army.

4.  The applicant's military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 4 November 2004.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, on or between 9 July 2004 and 8 August 2004, at Fort Bliss, Texas, wrongfully using MDMA, a controlled substance, this in violation of Article 112a, UCMJ.  The DA Form 2627 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment imposed was reduction to the grade of E-1, forfeiture of $596.00 pay per month for 2 months, 45 days extra duty, and 45 days restriction to the limits of the battalion, place of duty, place of worship, medical and mental facilities.  The DA Form 2627 further shows the applicant did not appeal the punishment imposed by the battalion commander in the Article 15 proceedings.

5.  On 16 November 2004, the applicant’s company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense.  Having been afforded the opportunity to consult with an attorney concerning the separation proceedings against him, the applicant declined to do so and submitted his waiver to consult with an attorney on 17 November 2004.  On
19 November 2004, the colonel serving as Commander, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, approved the proposed separation action under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense and directed the applicant be issued a general discharge under honorable conditions.
6.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty on
3 February 2004 and was issued a general discharge under honorable conditions on 3 December 2004.  At the time, the applicant had completed 0 years,
10 months, and 1 day net active service this period.  The DD Form 214 also shows that the separation authority and reason for his discharge was Army Regulation 635-200, paragraph 14-12c(2), misconduct.  Based on the authority and reason for separation, the applicant was assigned a Separation Program Designator (SPD) Code of “JKK” and an RE Code of “4.”

7.  There is no evidence the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) to request review of his discharge.

8.  AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

9.  Army Regulation 635-5-1 (Separation Program Designator (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 identifies the SPD code of “JKK” as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-12c(2), for commission of a serious offense.  The SPD/RE Code Cross Reference Table provides for the assignment of RE Code “4” to members separated with this SPD Code.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE Code “4” applies to persons who have a non-waivable disqualification and may not request reentry.  The Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE Code should be changed so that he may reenter military service and enlist in the U.S. Army.

2.  The applicant’s request for change of the RE Code that he received in conjunction with his discharge from the U.S. Army and the applicant’s record of service during the period of enlistment under review were carefully considered.  

3.  The evidence of records shows that the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense was administratively correct and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that the RE Code “4” that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the RE Code “4” assigned at the time of the applicant's discharge was, and remains, valid.  Therefore, there is no basis to change the applicant’s RE Code.

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)                                         AR20080011450



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ABCMR Record of Proceedings (cont)                                         AR20080011450



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