IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090002020 


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 eligibility (RE) code of RE-3 be upgraded to a more favorable code so he may reenlist.

2.  The applicant states, in effect, that the incident was his first offense.  He was having domestic problems with his wife.  At the time, he was a great Soldier with awards and decorations, and he was preparing for the sergeant promotion board. He was young and made a mistake; however, he learned from his mistake and would like a second chance to return to the military to complete the promise he made to serve many years ago.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 March 2001. 

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 record shows he was born on 7 June 1980 and enlisted in the Regular Army (RA) at 18 years of age for a period of 3 years on 23 August 2006. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 93P (Aviation Operation Specialist).  The highest rank/grade he attained during his military service was specialist/E-4.  

3.  The applicant’s records also show he was awarded the Army Commendation Medal, the Army Achievement Medal, the Army Service Ribbon, and the Overseas Service Ribbon. 

4.  On 27 November 2000, the Fort Polk Resident Agency, 6th Military Police Group (U. S. Army Criminal Investigation Command), Fort Polk, LA, conducted an investigation and established probable cause to believe the applicant and another Soldier committed the offense of wrongfully possessing and using a controlled substance on 25 November 2000.  The investigation also revealed the applicant failed to obey an order or a general regulation when he purchased alcohol which another Soldier consumed. 

5.  On 18 December 2000, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a general order by wrongfully purchasing alcohol while under the age of 21, wrongfully using opiates-a controlled substance, and wrongfully possessing an undetermined amount of opiates on or about 25 November 2000.  His punishment consisted of reduction to private (PV1)/E-1, a forfeiture of $502.00 pay, and 20 days of extra duty.

6.  On 29 January 2001, 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, citing the applicant’s violation of post policy by underage drinking and wrongful use and possession of opiates.  

7.  On 8 February 2001, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action 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 submit a statement on his own behalf.  In his statement, the applicant provided an overview of his military career and achievements. 

8.  On 8 February 2001, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR   635-200 for misconduct, commission of a serious offense.  The immediate commander further remarked that he did not consider it feasible to accomplish any other disposition.  The intermediate commander believed that if the applicant were allowed to remain in the service, his poor performance, disobedience to orders, and misconduct would only continue, causing him to be disruptive to the unit and the Army.  

9.  On 27 February 2001, 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 general discharge under honorable conditions. 

10.  On 7 March 2001, the separation authority approved the applicant’s discharge under the provisions of chapter 14, 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 14 March 2001.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms he completed a total of 2 years, 9 months, and 18 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry "JKK" and item 27 (Reentry Code) shows the entry "3." 

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 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 RA and the US Army Reserve.  Table 3-1 included a list of the RA RE codes.  An 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.  An 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. 

13.  AR 635-5-1 (Separation Program Designator Codes(SPD)) states that 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 "JKK" SPD code is the correct code for Soldiers separated under chapter 14-12(c) of AR 635-200 by reason of misconduct.  

14.  The SPD/RE Code Cross Reference Table, dated 1 March 2001, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD/RE code of "JKK" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his code of RE-3 should be upgraded to a favorable code that would allow him to reenlist.

2.  The evidence of records shows the applicant was 18 years of age at the time of his enlistment and 20 years of age at the time of his offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The evidence of record confirms 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, commission of a serious offense (drug abuse). Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Misconduct” and the appropriate RE code associated with this discharge is an RE-3.

4.  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.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to 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.




      _______ _   _______   ___
               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)                                         AR20090002020



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ABCMR Record of Proceedings (cont)                                         AR20090002020



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