IN THE CASE OF:	  

		BOARD DATE:	        19 February 2009

		DOCKET NUMBER:  AR20080015836 


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 the reentry (RE) code 4 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 7 September 2004 be changed to an RE code that would allow him to be eligible to reenter the Army.

2.  The applicant states, in effect, that he was told by his squadron commander that he would have an RE code that would allow him to reenter the military after
4 years.  He states that he asked again to make sure because the military lied to him too many times.  The applicant states that he wants to serve immediately and that he knows he can be a great asset to the United States and that he is still in great shape.

3.  The applicant provides no additional documents to support his 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 (RA) on 1 May 2003 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 31F (Network Switching Systems Operator).

3.  On 12 July 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.

4.  On 10 August 2004, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 for misconduct.  The reason cited by the commander was the applicant's testing positive for marijuana.

5.  On 12 August 2004, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was also advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14.  He waived his right to a separation board, representation by military counsel, and elected not to submit a statement in his own behalf.

6.  On 18 August 2004, the appropriate authority approved the recommendation and directed the applicant receive a general, under honorable conditions discharge.  On 7 September 2004, he was discharged after completing 1 year, 
4 months, and 7 days of creditable active service with no time lost.

7.  The applicant's DD Form 214 with the period ending 7 September 2004 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for "MISCONDUCT"; item 26 (Separation Code) shows a separation code of "JKK"; and item 27 (Reentry Code) shows the entry "4."

8.  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.  

9.  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. 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.  

10.  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 (drug abuse) under the provisions of Army Regulation 635-200, chapter 14-12c(2).  By regulation, this mandated that he be assigned an RE code of 4 upon his separation from the Army.  Although the applicant contends that he was told by his squadron commander that his RE code of 4 would allow him to reenter the Army after 4 years, there is no policy or regulation within the Army which automatically allows reentry after a set amount of time has passed.

3.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE code of 4 code assignment.  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 of 4 was appropriate, which does not allow his reentry in the military service.

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)                                         AR20080015836



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ABCMR Record of Proceedings (cont)                                         AR20080015836



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