BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090005165 


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 (RE) code be changed from RE-4 to RE-3 so that he can regain his Montgomery GI Bill (MGIB).

2.  The applicant states he was told he would be able to get back his MGIB after one year and it has been a little over three years.  

3.  The applicant provides a personal statement 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 enlisted in the Regular Army on 9 October 2003.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 11B (infantryman).  His highest grade attained was private first class.

3.  The applicant was discharged on 5 September 2006 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct - drug abuse with issuance of a general under honorable conditions discharge.  He completed 2 years and 10 months of active military service with 27 days of lost time.  

4.  His DD Form 214 shows he was issued an RE code of RE-4 and a Separation Program Designator (SPD) code of "JKK" (Misconduct-Drug Abuse).  

5.  The applicant provided a personal statement in support of his claim.  He stated he joined the Army on 5 October 2003 and he described his physical training scores.  He also described the difficulties he encountered while he was deployed and the affects of his marriage on his mental state.  His behavior also changed when he returned to Fort Lewis, WA.  He got mixed up with a different crowd and he was discharged for misconduct.  He wanted to further his education and start his life over with a clean slate.  He claimed that he was now more mature and felt he could do a better job in building himself up.  

6.  Army Regulation 635-5-1 (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 separation program designator “JKK” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Misconduct-Drug Abuse” and that the authority for discharge under this separation program designator is “AR 635-200, paragraph 14-12c(2)."  

7.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 4 as the proper reentry code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 
14-12c(2) for misconduct - drug abuse.

8.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

9.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

10.  Information obtained from the Department of Veterans Affairs (DVA) website regarding federal benefits states, in part, that VA benefits may be used while the servicemember is on active duty or after the servicemember's separation from active duty with a fully honorable military discharge.  Discharges "under honorable conditions" and "general" discharges do not establish eligibility.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was told he would be able to get back his MGIB after one year is noted.  However, the evidence of record shows the applicant was discharged with his service characterized as general under honorable conditions and discharges "under honorable conditions" and "general" do not establish eligibility for MGIB benefits.  

2.  The applicant was discharged on 5 September 2006 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct - drug abuse.

3.  The applicant's DD Form 214 shows he was separated with a separation code of "JKK" and was assigned an RE code of RE-4 in accordance with the governing regulation.  

4.  The applicant's personal statement was noted.  However, he has failed to show through the evidence submitted or the evidence of record that the RE code issued to him was administratively incorrect, in error or unjust.  

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)                                         AR20090005165





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ABCMR Record of Proceedings (cont)                                         AR20090005165



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