IN THE CASE OF:	  

		BOARD DATE:	  4 November 2008

		DOCKET NUMBER:  AR20080015096 


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, an upgrade of his reentry (RE) code.   

2.  The applicant states, in effect, that he had a positive urinalysis for THC (marijuana) and would like his RE code changed in order to allow him to resume military service in the active Army.  

3.  The applicant provides a Congressional Inquiry with associated 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 6 July 2000.  He was trained in, awarded, and served in military occupational specialty (MOS) 14S (Avenger Crewmember).  

3.  On 30 November 2003, he was honorably released from active duty (REFRAD) and transferred to a United States Army Reserve (USAR) Troop Program Unit (TPU).  The separation document (DD Form 214) he was issued at the time shows he was separated under the provisions of Chapter 4, Army Regulation 635-200, by reason of completion of required service, and that he was assigned a Separation Program Designator (SPD) code of LBK and an RE code of 3.  

4.  On 14 August 2004, the applicant tested positive for marijuana during a urinalysis drug test, and on 1 September 2004, the applicant received a General Officer Memorandum of Reprimand (GOMOR) from the Commander of the 
95th Division (Institutional Training), Oklahoma City, Oklahoma, a brigadier general (BG), who reprimanded the applicant for breaching the trust and confidence placed in him as a Soldier as a result of the applicant’s decision to use illegal drugs.  

5.  The record also contains Headquarters, 95th Division (Institutional Training) Orders Number 04-338-0003, dated 3 December 2004.  These orders reduced the applicant from specialist/E-4 (SPC) to private/E-1 (PV1), and directed his under other than honorable conditions (UOTHC) discharge from the USAR, effective 2 January 2005.  

6.  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.  It states, in pertinent part, that the SPD code LBK is the appropriate code to assign to RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment and are separated under the provisions of Chapter 4, Army Regulation 635-200, by reason of completion of required active service.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of LBK.

7.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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-3 applies to persons who have a wavable disqualification and RE-4 applies to persons who have a non-waivable disqualification.  

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA), the U.S. Army Reserve (USAR), and the Army National Guard (ARNG).  Chapter 4 contains guidance on waiver and non-waiver enlistment criteria.  Paragraph 4-25 indentifies non-waiver disqualifying separations or discharges, which includes a person with prior service who was last discharge from any component of the Armed Forces for drug or alcohol abuse.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should receive a change to his RE code in order to be allowed to reenlist was carefully considered.  However, there is an insufficient evidentiary basis to support granting the requested relief.  

2.  By regulation, prior service members who were last discharged with an RE-3 are eligible to apply for a waiver for reenlistment; however, those last discharged for drug use, are not eligible to apply for a waiver and/or to reenlist.  

3.  The evidence of record confirms that the applicant was assigned an SPD code of LBK and an RE code of RE-3 at the time of his REFRAD, which would have allowed him to apply for a waiver to reenlist.  However, the record also shows that he was ultimately discharged from the USAR based on drug use, which is a non-waivable disqualification.  Absent any evidence of error or injustice related to his discharge, there is an insufficient evidentiary basis to support granting the requested relief.  

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.

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)                                         AR20080015096



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ABCMR Record of Proceedings (cont)                                         AR20080015096


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