IN THE CASE OF:	  

		BOARD DATE:	        4 November 2008

		DOCKET NUMBER:  AR20080014741


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 on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states that she was not the only person in her company to receive the same Article 15 for the same reason, but she was the only person separated from the Army and given an RE code of RE-4.  She would like to reenlist and make up for what she did and finish what she started as a Soldier in the active Army.  She feels she deserves a second chance and could not find herself doing anything else in life but the Army.

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.  On 7 January 2002, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 20 March 2002, she was discharged from the DEP and enlisted in the Regular Army for 3 years.  She completed the training requirements and was awarded military occupational specialty 74D (Information Systems Operator).

3.  On 9 January 2003, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to her appointed place of duty, disobeying a lawful regulation, and disrespectful deportment to a noncommissioned officer.  Her punishment consisted of a reduction to private/E-2, a forfeiture of $268.00, and 14 days of extra duty and of restriction.

4.  On 4 December 2003, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongful use of cocaine.  Her punishment consisted of a reduction to private/E-1, a forfeiture of $575.00 pay per month for 2 months, and 45 days of extra duty and of restriction.

5.  The applicant was counseled on numerous occasions for failing to go to her appointed place of duty, wrongful use of cocaine, disobeying lawful orders, numerous occasions of failing to return to her place of duty, and insubordination.

6.  On 23 January 2004, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14-12c of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of misconduct – illegal use of drugs.

7.  On 29 January 2004, the applicant consulted with legal counsel and waived her right to an administrative separation board.  She indicated that she would submit a statement in her own behalf; however, it was not available for review.

8.  On 7 February 2004, the separation authority approved the applicant's discharge and directed that she be separated under the provisions of chapter 
14-12c(2) of Army Regulation 635-200 by reason of misconduct – illegal use of drugs with a general discharge (GD), under honorable conditions.

9.  On 11 February 2004, the applicant was discharged after completing 1 year, 10 months, and 21 days of active military service during the period under review.  Her DD Form 214 shows her service was characterized as general, under honorable conditions and she was assigned a Separation Program Designator (SPD) code of "JKK" and an RE code of "4."

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.  Specific categories include minor disciplinary infractions and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or absence 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

11.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the U.S. 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 Regular Army RE codes.  RE-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

12.  Army Regulation 635-5-1 (SPD Codes), then in effect, provided 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.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1 (Separation Documents) established RE Codes to be assigned for each SPD.

13.  A separation code of "JKK" was used for Regular Army Soldiers discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2) for illegal use of drugs.  The SPD/RE Code Cross Reference Table shows that RE code 4 is the applicable RE codes assigned for individuals discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  No evidence of arbitrary or capricious actions by the command was found.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant received NJP on 2 occasions and was continually counseled for her misconduct.  The evidence of record shows that the command attempted to assist the applicant in performing and conducting herself to Army standards by imposing NJP.  The applicant failed to respond appropriately to these efforts and continued to engage in misconduct.  After giving the applicant a reasonable opportunity to overcome her deficiencies, the command appropriately determined the applicant did not demonstrate the potential for further military service.

3.  The applicant's contentions were noted; however, they do not provide sufficient mitigation to warrant a change in her discharge.  Her discharge was based on her illegal use of cocaine.

4.  The RE code is based on an individual's reason for discharge and cannot be changed unless the narrative reason for discharge is changed.  The evidence in the official record fully supports her narrative reason for discharge as stated and there is no basis upon which to change her reason for discharge.  Therefore, the applicant's RE code was appropriately assigned in accordance with the regulatory guidance above and there is no basis upon which to change it.

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)                                         AR20080014741



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ABCMR Record of Proceedings (cont)                                         AR20080014741



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