IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080016977 


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 his reentry (RE) code be upgraded from RE-4 to RE-1 or RE-2.

2.  The applicant states that since his separation, he has been employed and is a church-going, model citizen.

3.  The applicant did not provide any additional documentary evidence 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 records show that he enlisted in the Regular Army for a period of 4 years on 26 November 1991.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3. The applicant's records also show he was awarded the Army Achievement Medal, the National Defense Service Medal, the Humanitarian Service Medal, the Army Service Ribbon, and the Parachutist Badge.

4.  On 7 March 1994, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 10 April 1994, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana between on or about 5 February 1994 and 7 March 1994.  His punishment consisted of reduction to the rank/grade of PVT/E-1, a forfeiture of $416.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.

6.  On 24 May 1994, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation (AR) 635-200 (Personnel Separations) for misconduct, abuse of illegal drugs.  

7.  On 24 May 1994, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to appear before an administrative separation board but not to submit a statement on his own behalf.

8.  On 24 May 1994, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct-abuse of illegal drugs.  The immediate commander further recommended a character of service of other than honorable.

9.  On 24 May 1994, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of AR 635-200 with a character of service of under honorable conditions (general). 

10.  On 6 June 1994, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 16 June 1994.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further shows he completed a total of 2 years,     6 months, and 21 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry “4.”  

11.  AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

12.  AR 635-200 states, 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.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

13.  AR 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of JKK is the correct code for a discharge in accordance with paragraph 14-12(c) of AR 635-200.  Additionally, the SPD/RE Code Cross-Reference Table, dated 20 September 1993, shows that “RE-4” is the appropriate RE code for individuals who separated with an SPD code of JKK.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of RE-4 should be changed to
RE-1 or RE-2.

2.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 14 of AR 635-200 due to misconduct-abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct–abuse of illegal drugs.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct” and the appropriate RE code associated with this discharge is a RE-4.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.









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)                                         AR20080016977



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016977



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1