IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004948 


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, a change to the reentry (RE) code of RE-3 listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 27 February 1989. 

2.  The applicant states, in effect, that he tested positive during a urinalysis test and has been punished enough for his inappropriate conduct by not being allowed to serve his country.  He claims he has completed his master's degree in counseling and would like to serve veterans by joining the Army National Guard.

3.  The applicant provides no additional documentary evidence 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 record shows he initially enlisted in the Regular Army (RA) and entered active duty on 4 October 1977.  He continually served for a period of 1 year, 9 months, and 2 days until being honorably discharged for the purpose of immediate reenlistment on 5 July 1979.  On 6 July 1979, he reenlisted for 4 years. 

3.  The applicant's record shows he was trained in, awarded, and served in military occupational specialty (MOS) 16P (Chaparral Crewmember) and MOS 
76Y (Unit Supply Specialist).  It further shows the highest rank/grade he attained while serving on active duty was staff sergeant/E-6 (SSG/E-6).  His record also shows that during his active duty tenure, he earned the Army Service Ribbon, Army Achievement Medal with First Oak Leaf Cluster, Army Good Conduct Medal (3rd Award), Army Commendation Medal, Noncommissioned Officers Professional Development Ribbon (Level 2), Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, and Overseas Service Ribbon with Numeral 2.

4.  On 31 October 1988, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c, 
Army Regulation 635-200, by reason of commission of a serious offense – abuse of illegal drugs.  He cited the applicant’s receipt of a Field Grade Article 15 for positive urinalysis for cocaine and marijuana as the reason for the proposed separation action.   

5.  On 1 November 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of waiver of those rights.  Subsequent to this counseling, the applicant requested consideration of his case by an administrative separation board and elected not to submit a statement in his own behalf.  

6.  On 12 January 1989, an administrative separation board convened to determine whether the applicant should be discharged from the service under the provisions of Chapter 14-12a, Army Regulation 635-200, by reason of misconduct- abuse of illegal drugs.  The board found the applicant to be undesirable for further retention in the military based on his misconduct-abuse of illegal drugs and deemed rehabilitation impossible.  The board recommended the applicant be discharged due to misconduct-abuse of illegal drugs and that he be issued an honorable discharge (HD). 

7.  On 14 February 1989, the separation authority approved the separation action and directed the applicant receive a general, under honorable conditions discharge (GD).  On 27 February 1989, the applicant was separated accordingly. 8.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of paragraph 14-12c (2), Army Regulation 
635-200 (Personnel Separations – Enlisted Separations), by reason of misconduct-abuse of illegal drugs.  Item 24 (Character of Service) contains the entry "Honorable" and based on the authority and reason for his discharge, he was assigned the Separation Program Designator (SPD) code of JKK in Item 26 (Separation Code) and the corresponding RE code of 3 in Item 27 (Reentry Code).  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c (2) pertains specifically to a commission of a serious offense that is drug-related.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

10.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility criteria 
for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-4 applies to members permanently disqualified from further service.  

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JKK is the appropriate code to assign to Soldiers separated under the provisions of paragraph 14-12c (2), Army Regulation 635-200, by reason of misconduct (commission of a serious offense – drug-related).  The SPD/RE Code Cross Reference Table in effect at the time of the applicant's discharge established RE-3 as the proper code to assign members separated with the SPD of JKK.  Under the current table, RE-4 is the appropriate code to assign members separated with an SPD code of JKK under these same provisions.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his RE code be changed to a more favorable code so that he may enlist in the Army National Guard was carefully considered. However, the regulation in effect at the time of his discharge identified RE-3 as the proper code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct based on the commission of a drug-related offense and under the current regulatory guidance, an RE-4 code is the appropriate code to assign members separated under this provision of the regulation.  As a result, under current Army regulatory provisions, the applicant is permanently disqualified from further service.  

2.  The applicant knowingly risked his military career by using illegal drugs and this misconduct clearly supported the ultimate discharge action taken that resulted in the assigned RE code.  As a result, the assigned RE code was appropriate when assigned and would be even less favorable under current regulatory provisions based on the authority and reason for his discharge.  As a result, his RE code was and remains valid and there is an insufficient evidentiary basis to support granting the requested relief.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement

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)                                         AR20090004948



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ABCMR Record of Proceedings (cont)                                         AR20090004948



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