IN THE CASE OF:	  

		BOARD DATE:	       31 MARCH 2009

		DOCKET NUMBER:  AR20090001228 


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 her Reentry (RE) code of RE-3 be changed to a more favorable RE code.

2.  The applicant states that her "SPN" (sic) code is identified as RE-3 and this is incorrect because the Review Board stated that after three years, she could return to the U.S. Army to complete her last four years [of service] for retirement.  She claims she was unjustly taken before a court-martial because she was very disliked by her post commander.  She states the post commander became very arrogant with her on several occasions because the post commander thought she was gay.  She states she was a single parent and the post commander would put her on the field list for every field operation because she knew that she would have a hard time finding a caretaker for her two small children.  

3.  The applicant provides no additional documents in support of her 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.  After having had prior service in the U.S. Army Reserve, Women's Army Corps (WAC), the applicant enlisted in the Regular Army on 19 February 1974.  She continued to serve on active duty through two reenlistments.  

3.  On 26 June 1984, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for two specifications of disobeying a lawful command from her superior commissioned officer and being derelict in the performance of her duties.  

4.  The applicant was discharged on 19 March 1987 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct- abuse of illegal drugs with service characterized as honorable.  She had completed a total of 13 years, 1 month, and 1 day total active military service.  

5.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged with a separation code of "JKK" (Misconduct-Abuse of Illegal Drugs) and was issued an RE code of RE-3.

6.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), 
the reasons for the separation of members from active military service, and the 
SPD codes to be used for these stated reasons.  The regulation shows the SPD code of “JKK” as shown on the applicant’s DD Form 214 specifies the narrative reason for separation as involuntary release or transfer for “Misconduct-Abuse of Illegal Drugs” and that the authority for separation under this separation program designator is “AR 635-200, paragraph 14-12c.”  

7.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), in effect, at the time, established RE code 3 as the proper reentry code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes 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 will be taken to separate a member for 


misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  

9.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully reviewed.  However, there is insufficient evidence to substantiate her claims.  

2.  The applicant was discharged on 19 March 1987 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-abuse of illegal drugs.  

3.  The applicant's DD Form 214 shows she was separated with a separation code of "JKK" and was assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

4.  The RE code the applicant was assigned was correct at the time it was assigned and it is still correct.  However, the applicant's disqualification for reentry is waivable under the Army enlistment criteria.  If she still desires to reenter the Army, she should contact her local recruiter to determine if she is eligible to apply for a waiver under the current enlistment criteria.

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)                                         AR20090001228



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ABCMR Record of Proceedings (cont)                                         AR20090001228



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