IN THE CASE OF:	  

		BOARD DATE:	        4 August 2009

		DOCKET NUMBER:  AR20090004698 


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 reenlistment code, otherwise known as the reentry eligibility (RE) code, be upgraded from a "4" to a more favorable RE code.

2.  The applicant states that he was unaware that he had an undesirable RE code until he tried to enlist.  He states that he made a bad choice that he lives with every day and that the way his service ended is unacceptable to him.  He further states that the only way he can right the wrong is to have his RE code changed so that he can move forward with his enlistment.

3.  The applicant did not provide any supporting documents with 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 2 October 2001.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 14S (Avenger Crewmember).  The highest rank/grade he attained during his military service was private first class/pay grade E-3.

3.  The applicant was assigned to Bravo Battery, 3rd Battalion, 4th Air Defense Artillery Regiment, at Fort Bragg, NC, on 2 May 2002.

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 20 December 2002 for wrongful use of cocaine between on or about 30 November 2002 and 3 December 2002.  His punishment was a reduction to private/pay grade E-1, forfeiture of $552.00 a month for 2 months, and restriction and extra duty for 45 days.

5.  On 3 January 2003, 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 cocaine.

6.  On 14 January 2003, the applicant’s record shows that he underwent a psychological evaluation and was found to be mentally responsible for his behavior, that he could distinguish right from wrong, and that he possessed sufficient mental capacity.  There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition though medical channels.  The applicant was medically cleared by the post Behavioral Health Clinic for any administrative action or training as deemed appropriate by his chain of command.

7.  On 5 February 2003, 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 commander stated that the applicant tested positive for a controlled substance, cocaine, on 2 December 2002 during a random unit urinalysis test.

8.  On 5 February 2003, the applicant acknowledged receipt of the separation memorandum.  He 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.

9.  On 7 February 2003, 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.

10.  Accordingly, the applicant was discharged on 27 February 2003.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 year, 4 months, and 26 days of active duty service, that item 26 (Separation Code) shows the entry "JKQ," and item 27 (Reentry Code) shows the entry "3."

11.  Army Regulation 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 the regulation.

12.  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 the disqualification is waivable.  They are ineligible to reenlist unless a waiver is granted.

13.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated 1 December 2000, shows that the appropriate RE code for the SPD code of "JKQ" is RE-3.

14.  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 RE code should be upgraded so he can enlist.

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 own personal misconduct that led to a commission of a serious offense.  The only valid narrative reason for separation permitted under paragraph 14-12c is "misconduct" and the appropriate RE code associated with this type of discharge in 2003 was RE-3.

3.  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.

4.  While the applicant’s desire to enlist is commendable, the Board does not change a properly constituted military record to establish eligibility for a program or benefit.



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)                                         AR20090004698



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ABCMR Record of Proceedings (cont)                                         AR20090004698



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