IN THE CASE OF:	  

		BOARD DATE:	        25 JUNE 2009

		DOCKET NUMBER:  AR20090003146 


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-4 be upgraded to an RE-1.

2.  The applicant states that other Soldiers in similar/more extreme situations received different consideration.

3.  The applicant provides no additional evidence or official documentation 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 records show he enlisted in the Regular Army on 18 November 2002.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 21B (Combat Engineer).

3.  The applicant served in Kuwait during the period from 2 - 16 April 2003.  He served in Iraq during the period from 16 April 2003 through 13 March 2004.

4.  On 14 December 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana on or about 10 and 26 October 2004.

5.  On 22 December 2004, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2) by reason of testing positive for the use of marijuana.  The commander advised the applicant he was recommending a general discharge under honorable conditions.

6.  The commander advised the applicant of his right to consult with counsel, submit statements in his own behalf, obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his separation.  

7.  On 7 January 2005, after having consulted with appointed counsel, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to involuntarily separate him.  The applicant indicated he was submitting a statement in his own behalf.  

8.  The applicant's commander recommended that the applicant be separated from the Army prior to the expiration of his term of enlistment under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) due to wrongful use of marijuana.  The commander stated the applicant had demonstrated an unwillingness to live up to Army standards by testing positive for marijuana.

9.  On 13 January 2005, the appropriate separation authority approved the recommendation for discharge by reason of commission of a serious offense, waived the requirement for a rehabilitative transfer, and directed that the applicant be furnished a General Discharge Certificate.



10.  On 27 January 2005, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2).  The applicant was assigned a separation program designator (SPD) code of "JKK" and an RE code of RE-4.  He had completed 2 years, 2 months, and 10 days of active service that was characterized as under honorable conditions (general).

11.  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 the commission of a serious offense.  Paragraph 14-12c(2) defines the abuse of illegal drugs as serious misconduct.  This regulation provided that 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 considered appropriate.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD code “JKK” as shown on the applicant’s 
DD Form 214 specified the narrative reason for discharge as “Misconduct."
 
13.  The SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of "JKK" is RE-4.

14.  Pertinent Army regulations provide 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), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

15.  Table 3-1 (U.S. Army RE Codes) of Army Regulation 601-210 provides that an RE-4 applies to a person separated from their last period of service with a non-waivable disqualification.  These individuals are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was treated differently from other Soldiers in similar or more extreme situations.  However, he has provided no evidence to substantiate his contention.  Therefore, his contention was not considered as a mitigating factor in the determination of his case.

2.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The regulation defines abuse of illegal drugs as serious misconduct.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would tend to jeopardize his rights.

3.  The applicant was processed for separation due to illegal drug abuse.  Therefore, the assigned SPD code of "JKK" is correct.  According to the SPD/RE Code Cross-Reference Table the assigned RE code of RE-4 is also administratively correct.

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)                                         AR20090003146



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ABCMR Record of Proceedings (cont)                                         AR20090003146



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