IN THE CASE OF:	  

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080012258 


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 his reentry eligibility (RE) code 4 on his DD Form 
214 (Certificate of Release or Discharge from Active Duty) with the ending period 6 February 1998 be changed.  

2.  The applicant states, in effect, that he wishes to enlist in the military and feels that the RE code he received was unjust.  The applicant also states that he was a good Soldier with an excellent job performance.

3.  The applicant provides no additional documentation in support of this case.

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 on 22 January 1992 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).  

3.  The applicant was honorably discharged on 23 May 1995 and immediately reenlisted on 24 May 1995.  

4.  On 24 October 1997, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for possession and use of marijuana.

5.  On 30 December 1997, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct (commission of a serious offense).  The reason cited by the commander was the applicant's receiving a Field Grade Article 15 for using and possessing marijuana.  The applicant was advised of his rights and was afforded the opportunity to consult with counsel.

6.  The applicant's election rights are not contained in the available records.

7.  On an unknown date, the appropriate authority approved the recommendation and directed the applicant receive a general under honorable conditions discharge.  On 6 February 1998, he was discharged after completing 6 years and 15 days of creditable active service with no time lost.

8.  The applicant's DD Form 214 with the period ending 6 February 1998 shows he was discharged under the provisions of paragraph 14-12c(2), Army Regulation 635-200, for "MISCONDUCT"; item 27 (Reentry Code) shows the entry "4"; and item 26 (Separation Code) shows a separation code of JKK.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB found that the discharge was inequitable, but it was not improper.  On 27 December 2007, the ADRB voted to upgrade his characterization of service to "Honorable," based on the applicant's overall length and quality of service and the time that elapsed since his discharge.  The Board determined that the reason for discharge was both proper and equitable and voted not to change it.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for 

separating members for misconduct.  Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.  

11.  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.  The SPD code of JKK was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct - drug abuse.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers with an SPD of JKK.  

12.  An RE code 4 applies to persons not qualified for continued Army service and the disqualification is non-waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his RE code changed on his DD Form 214 in order to reenter military service.  However, the ABCMR does not change RE codes solely to allow former Soldiers to reenter military service.  

2.  Evidence of record shows that the applicant was separated from the service for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200, chapter 14-12c(2).  By regulation, this mandated that he be assigned an RE code 4 upon his separation from the Army.

3.  Lacking independent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE code 4 was appropriate.

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.



															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)                                         AR20080012258





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012258



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1