IN THE CASE OF:	  

		BOARD DATE:	       24 February 2009

		DOCKET NUMBER:  AR20080018110 


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 reenlistment eligibility (RE) code be changed so that she can reenlist.

2.  The applicant states that she has been told she was assigned the wrong RE code. 

3.  The applicant provides copies 1 and 4 of her DD Form 214 (Certificate of release or Discharge from Active Duty).

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 and entered active duty on 
9 February 2002.  She completed training and progressed normally.  

3.  She received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 2 April 2003 and on 6 August 2004 for using marijuana.  She was reduced to pay grade E-1 at the second NJP.

4.  A mental status evaluation, on 23 July 2004, found the applicant's behavior normal.  She was fully alert and oriented and displayed a depressed mood.  Her thinking was clear, her thought content normal and her memory good.  There was no significant mental illness.  The applicant was mentally responsible.  She refused alcohol and drug counseling.  There was no evidence of mental illness and she was administratively cleared for administrative action deemed appropriate.  

5.  On 31 August 2004 the company commander recommended separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for abuse of illegal drugs.

6.  On 22 September 2004, the applicant consulted with counsel and acknowledged that she had been advised of the contemplated separation, the rights available to her and the effect of waiving those rights.  She indicated that statements in her own behalf would not be submitted.  She requested consulting counsel.

7.  She also indicated that she understood that she could expect to encounter substantial prejudice in civilian life and that she might be ineligible for some veterans benefits under State of Federal law.  

8.  The applicant was separated, on 15 October 2004, with a general discharge.  She was issued a separation program designator (SPD) code of JKK and an RE code of 4.

9.  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, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, 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.
10.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

11.  Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 112a for wrongful use/abuse of marijuana includes a punitive discharge.

12.  Army Regulation 601-210, in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-3 applied to persons separated from their last period of service with a waivable disqualification, and RE-4 to persons with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and 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 upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, for Misconduct–Abuse of Illegal Drugs.  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 applicants states in effect that she was assigned the wrong RE code.

2.  The applicant was separated for commission of a serious offense by abuse of marijuana.

3.  The offense was serious because her second NJP for abuse of marijuana coupled with her refusal to participate in alcohol and drug abuse counseling clearly warranted separation and the UCMJ authorized a punitive discharge as punishment by a trial by court martial.

4.  The applicant was assigned the appropriate SPD based on the reason for her separation.  The SPD/RE Code Cross Reference Table in Army Regulation 635-5 indicates that RE-4 is the correct code to correspond to that SPD.

5.  In view of the circumstances in this case, the assigned RE code was and still is appropriate.

6.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code.

7.  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 the aforementioned requirement.

8.  In view of the foregoing, there appears to be 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)                                         AR20080018110





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ABCMR Record of Proceedings (cont)                                         AR20080018110



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