IN THE CASE OF:	  

		BOARD DATE:	  	  9 October 2008

		DOCKET NUMBER:  AR20080012828 


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 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from
"RE-4" and that he be restored to the grade of E-4 (specialist).

2.  The applicant states, in effect, that other service members discharged at the same time received RE Codes that would allow them to reenlist and they were only demoted one pay grade.    

3.  The applicant provides no additional documents in support of his application.

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 record shows that he enlisted in the Regular Army and entered active duty on 2 September 1999.  He was trained in, awarded, and served in military occupational specialty (MOS) 33W (Military Intelligence System Maintainer), and the highest rank he attained while serving on active duty was Sergeant (E-5).  

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment for wrongful use of marijuana between 
21 July and 19 August 2003.  His punishment included a reduction to the rank of private (E-4), a forfeiture of $874.00 pay for 2 months, and 45 days of extra duty.

4.  The applicant's record also contains six General Counseling statements, dated between 15 August and 29 September 2003 for various offenses to include failure to report to his appointed place of duty (on four occasions), disobeying a lawful order from a noncommissioned officer, and disobeying a direct order.

5.  On 19 September 2003, a mental and a physical evaluation cleared the applicant for any administrative action deemed appropriate. 

6.  On 8 October 2003, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14 -12c (2), Army Regulation 635-200, by reason of Misconduct- Abuse of Illegal Drugs, with a discharge under honorable condition.  The reason for the proposed action was the applicant’s wrongful use of methamphetamines.

7.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

8.  On 16 January 2004, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of misconduct (abuse of illegal drugs), with an under other than honorable conditions discharge.  The 
DD Form 214 he was issued at the time confirms he held the rank of private/E-1, and had completed a total 4 years, 4 months and 15 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, the applicant was assigned a separation program designator (SPD) code of JKK and an RE code of RE-4.  

9.  The applicant authenticated his DD Form 214, issued on 9 November 2004, with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

10. On 14 June 2006 the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a general discharge, under honorable conditions. 
The applicant’s rank was not changed.  

11.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

12.  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 Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

13.  Army Regulation (AR) 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 is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 14-12c, by reason of misconduct (Abuse of Illegal Drugs).  









DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 14-12c for misconduct (Abuse of Illegal Drugs).  The applicant’s record shows that he violated the Army’s drug abuse policy and possessed or used illegal drugs, which compromised the trust and confidence placed in him as a Soldier.  The applicant as a Soldier had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked his military career.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  An RE-4 applies to persons who are permanently disqualified for continued Army service.

2.  Notwithstanding the ADRB's decision to upgrade his discharge, it is clear that the applicant was charged with abuse of illegal drugs and received numerous counseling for incidents occurring after he was punished for the use of illegal drugs.  The applicant’s conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service was not so meritorious as to warrant a restoration of pay grade.  Therefore, there is no evidence nor has the applicant presented any evidence to warranted relief beyond that already provided by the ADRB.

3.  Therefore, 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)                                         AR20080012828



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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