IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090002867 


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 narrative reason for separation and reentry eligibility (RE code) be changed to more favorable terms.

2.  The applicant states, in effect, that he received a chapter discharge for a positive urinalysis nearly 2 years after the offense.  He states he was told his separation from the Regular Army was based on a reduction in force, not misconduct-abuse of illegal drugs.  He states he is currently working with the U.S. Army in Iraq and he would like to reenlist so he can proudly serve his country.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 29 November 1989 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 military personnel record shows that he enlisted in the Regular Army for a 3-year period on 16 April 1987.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13F (Fire Support Specialist).  The highest rank/grade he attained during his military service was private first class/pay grade E-3.

3.  On 11 March 1988, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana at an unknown location between 9 December 1987 and 9 January 1988.  

4.  The applicant's service record reveals a disciplinary history of missing unit formations, failure to report to appointed place of duty, and missing movement.  These transgressions were documented on DA Forms 4856 (General Counseling Form) between 8 March 1988 and 9 December 1988.  The applicant authenticated each DA Form 4856 in his own hand and concurred with each counseling session except for one.  On 9 December 1988, the applicant missed morning formation and stated he was 5 minutes late because his personal equipment was damaged and he sought a replacement set from a friend. 

5.  The applicant's service record reveals a history of financial mismanagement of his personal checking account.  He presented three checks on three separate dates in March 1988 with insufficient funds in his personal bank account to cover these checks.  The total dollar amount exceeded $315.00.  

6.  On 7 November 1989, 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 635-200 (Personnel Separations) for misconduct-commission of a serious offense due to his wrongful use of  marijuana, writing dishonored checks, and minor disciplinary infractions.

7.  On 7 November 1989, the applicant acknowledged receipt of the separation memorandum.  He immediately 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 waive submitting statements on his own behalf and waived a personal appearance before a separation board, if entitled to a board.

8.  On 7 November 1989, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct-commission of a serious offense.  The immediate commander further remarked that the applicant did not show potential for useful service under conditions of full mobilization and recommended a general discharge.

9.  On 13 November 1989, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200.

10.  On 15 November 1989, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-commission of a serious offense, and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 29 November 1989.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general discharge).  This form further confirms that he completed a total of 2 years, 7 months, and 14 days of creditable active military service.  This same DD Form 214 shows in item 26 (Separation Code) the entry "JKK" and in item 27 (Reentry Code) the entry "3."

11.  There is no evidence that the applicant applied to the Army Discharge Review Board to upgrade his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Enlisted Personnel Separations), 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.

13.  Army Regulation 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-6 included a list of the Regular Army 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 the 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.

14.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated October 1985, shows that the appropriate RE code for the SPD code of "JKK" is RE-3.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation and his RE code should be upgraded to a favorable reason that would allow him to reenlist.
   
2.  The evidence of record shows that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct-- abuse of illegal drugs.  The underlying reason for his discharge was his misconduct–commission of a serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate RE code associated with this discharge in 1985 was RE-3.

3.  Since the applicant's discharge was based on his use of marijuana, writing bad checks, and minor disciplinary infractions, the narrative reason for his separation should have been a pattern of misconduct and not abuse of illegal drugs.  However, both separations are for misconduct and the change of the reason for separation would not affect his RE code.  Therefore, the narrative reason for separation will remain unchanged. 

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.

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)                                         AR20090002867





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ABCMR Record of Proceedings (cont)                                         AR20090002867



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