IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080015864 


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 eligibility (RE) code be changed in the interest of justice.

2.  The applicant states that he does not consider his assigned RE-4 to be in error, but he would like it changed so that he can request a waiver to reenlist.

3.  The applicant provides no documentation to support his request.

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 on 11 July 2002, completed training as a field artillery radar operator, and was advanced to pay grade E-3 on 
1 July 2003. 

3.  The applicant tested positive for marijuana on 3 November 2003, and on 
12 December 2003 he received nonjudicial punishment (NJP) for that offense under the provisions of Article 15, Uniform Code of Military Justice.  The battalion commander imposed punishment that included reduction to pay grade E-1.

4.  The company commander recommended that the applicant be separated for abuse of illegal drugs under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  The commander cited in his recommendation the applicant had two prior NJP's and he forwarded with his recommendation several adverse counseling statements the applicant received for various offenses to include:  failing to pay a traffic ticket, having contraband liquor in his barracks room, and for failing the Army Physical Fitness Test.  

5.  On 18 February 2004, the applicant consulted with counsel, was advised of the rights available to him and the consequences of the pending discharge action.  

6.  On 16 April 2004, the separation authority approved the recommendation and directed that a general discharge be issued. 

7.  On 10 May 2004, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct due to drug abuse.  He was assigned a separation program designator (SPD) code of JKK and an RE code of 4.  He completed 1 year and 10 months of active service this period with no recorded lost time.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.


9.  Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an 
Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an RE code of "3" can normally reenlist but will probably require a waiver to be processed.  Individuals with an Army RE code of "4" are normally not eligible to reenlist in the Army, nor join another service.  

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicant's for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

11.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, paragraph 14-12c2 mandates an SPD code of JKK.

12.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he does not consider the RE code to be in error, but asks that the code be changed to allow him to enlist.

2.  In view of the circumstances in this case, the assigned reentry eligibility code was and still is appropriate.  There appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code.

3.  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.


4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080015864



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015864



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1