IN THE CASE OF:	  

		BOARD DATE:	   	  25 November 2008

		DOCKET NUMBER:  AR20080013714 


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 a change of his of his Reenlistment (RE) Code so he can reenter the Army.

2.  The applicant states, in effect, while serving in the U.S. Army and assigned in Hawaii, he smoked marijuana and was discharged after a positive urinalysis test.  He states this ended his military career that he excelled in.  He further states that he will never smoke this illegal substance again.

     a.  The applicant states he went back to college and received an associate degree in electronics and the A+ certification, along with other studies in the computer field.  He also states that he worked in an archery shop for 3 years, worked as a carpenter for 8 years, and worked in the computer field for 13 years.

     b.  The applicant states that during his employment in the civilian sector, he compared it to the time he served in the Army and came to appreciate the structure, discipline, and decision-making process that only the military provides.  He concludes by stating he now wishes to reenter the U.S. Army to serve our great Nation.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 October 1987; Brandywine Counseling, Inc., Wilmington, Delaware, letter, dated 4 December 2006 with Drug Evaluation Network System (DENS) Addiction 


Severity Index (ASI) Report, dated 22 November 2006; Clinical Science 
Laboratory, Inc., Mansfield, Massachusetts, Laboratory Report, dated
28 November 2006; letter from William and Sylvia R___, undated; and letter from Wil R___, undated.

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 he enlisted in the U.S. Army Reserve (USAR) on 21 June 1984 and entered active duty in the Regular Army (RA) for a period of 3 years on 14 August 1984.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  On 28 June 1986, the applicant extended the period of his enlistment to a period of 3 years and
7 months to attend Ranger school.

3.  On 13 October 1987, the applicant's commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12b, based on his patterns of misconduct.  The reasons for the commander’s recommendation were based on the applicant having twice been "convicted" of charges related to drug abuse.  (The applicant received two nonjudicial punishments by Article 15 under the Uniform Code of Military Justice for use of marijuana, one of which was prior to the incident that led to his recommendation for discharge.)  On 13 October 1987, the applicant acknowledged receipt of the notification of separation action.  On 14 October 1987, the applicant also acknowledged that he had been advised of his right to consult with counsel.  He indicated that he declined the opportunity to consult with counsel and elected not 


to submit statements in his own behalf.  On 16 October 1987, the separation authority approved the applicant's discharge and directed issuance of a General Discharge Certificate with service characterized as honorable.

4.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows the applicant was discharged under honorable conditions with an effective date of 30 October 1987.  At the time of his discharge, the applicant had completed 3 years, 2 months, and
17 days of net active service.  This document also shows, in pertinent part, that the separation authority was Army Regulation 635-200, paragraph 14-12d, and the reason for his separation was "misconduct - drug abuse."  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-3/3C.”

5.  On 15 August 1988, the applicant applied to the Army Discharge Review Board (ADRB) requesting upgrade of the character of his general, under honorable conditions discharge in order to reenter military service.  On 27 April 1989, the ADRB determined that the applicant was properly and equitably discharged.  Accordingly, the ADRB voted unanimously to deny the applicant’s appeal.  The applicant was also informed that reenlistment matters or changes in RE Codes are not within the purview of the ADRB and was advised to contact a local service recruiter if he desired to reenter the Service.

6.  In support of his application, the applicant provides the following documents.

     a.  DD Form 214, with an effective date of 30 October 1987, that was previously introduced and considered in this Record of Proceedings.

     b.  Brandywine Counseling, Inc., Wilmington, Delaware, letter, dated
4 December 2006 with DENS ASI Report, dated 22 November 2006 that show, in pertinent part, the applicant has a severity rating of “0” and indicates “no real problem; treatment not needed” for alcohol or drugs.

     c.  Clinical Science Laboratory, Inc., Mansfield, Massachusetts, Laboratory Report, dated 28 November 2006, that shows no detection of the drugs tested.

     d.  A letter from William and Sylvia R___, undated, that shows they are neighbors of the applicant whom they have known for many years.  They state the applicant is hard-working, friendly, personable, bright, intelligent, and always willing to lend a hand.  They also state the applicant would be a great addition to any work force in any capacity.

     e.  A letter from Wil R___, undated, that shows he has known the applicant for many years.  He states the applicant is honest, hard-working, knowledgeable about many things, and a great guy.  He also states that the applicant deserves to be in a job that he finds to be rewarding and fulfilling.

7.  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 separated under the provisions of Army Regulation 635-200, paragraph 14-12d, based on misconduct - alcohol or other drug offense(s).  The SPD/RE Code Cross Reference Table establishes “RE-3/3C” as the proper RE Code to assign Soldiers separated with an SPD Code of "JKK."

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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-3/3C applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

9.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the U.S. Armed Forces are categorized as prior service (PS) personnel.  The applicant's military records show that he qualifies as prior service.)

10.  Army Regulation 601-210 also prescribes eligibility criteria governing the enlistment of persons, with or without PS, into the RA and the USAR.  Paragraph 3-20 (Verification of PS) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

11.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request 

or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their 
acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless 
indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the USAR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate email address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

12.  The governing Army regulation further provides that PS Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the
RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, U.S. Army Human Resources Command, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."

13.  There is no evidence in the applicant's military service records that shows he applied for a waiver of his RE Code to reenter the U.S. Army and/or that his request was denied.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for change to the RE-3/3C code he received in conjunction with his discharge from the Army was carefully considered.

2.  The evidence of record shows that the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 for a pattern of misconduct based on drug abuse 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.

3.  The evidence of record shows the RE Code that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the assigned RE Code of “RE-3/3C” was and remains valid. Therefore, there is no basis to change the applicant’s RE Code.
4.  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.

5.  The evidence of record indicates that the reason the applicant may be requesting change to his RE Code is in order to reenter the U.S. Army.  In this regard, the evidence of record shows that individuals, including PS personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.

6.  Accordingly, the applicant is advised that, although no change is being recommended to his RE Code, this does not mean that he is disqualified from enlistment in the U.S. Army, as the RE-3/3C code he was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, he should contact a local recruiter to determine his eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a prior service member as to the needs of the Service and are required to process waivers of RE codes.

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)                                         AR20080013714



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ABCMR Record of Proceedings (cont)                                         AR20080013714



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