IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090005168 


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 Eligibility (RE) code be changed from a “4” to a “2” or “3” so that he may be eligible to reenter the military.

2.  The applicant states that his RE code should not have been a “4” since his conduct was not that bad.  He was a good Soldier until he reenlisted and the Army failed to fulfill its end of the contract.  He was not told about stop-loss and/or stop-movement until he reenlisted.  He reenlisted and deployed to Iraq  and when he returned from deployment he was told he did not have sufficient service remaining to proceed to the promised location.  As a 22 year old, he felt cheated and made the biggest mistake in his life. 

3.  The applicant provides a copy of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 January 2005.  

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 records show he enlisted in the Regular Army for a period of 4 years on 3 April 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 88M (Motor Transport Operator).  The highest rank/grade he attained during his military service was specialist/E-4.  

3.  On 15 April 2004, the applicant executed a 3-year reenlistment in the Regular Army.  Item 8b (Remarks) shows he reenlisted for a station of choice (Fort Eustis, VA) option.  

4.  The applicant’s records show he served in Iraq from 2 April 2003 to 2 April 2004.  His awards and decorations include the Army Commendation Medal, the Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal and Global War on Terrorism Expeditionary Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Korea Defense Service Medal, and the Driver and Mechanic Badge with Driver-W Bar.  

5.  On 6 July 2004, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

6.  On 12 August 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $669.00 pay per month for 2 months (the second month suspended until 11 February 2005), and 45 days of restriction and extra duty.  

7.  On 5 November 2004, the applicant participated in a unit urinalysis and his urine sample tested positive again for marijuana.

8.  On 19 November 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $597.00 pay per month for 2 months, and 45 days of restriction and extra duty.  

9.  On 2 December 2004, 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 citing the applicant’s wrongful use of marijuana. 

10.  On 2 December 2004, the applicant acknowledged receipt of the separation notification; consulted with legal counsel; and was advised of the basis for the contemplated separation action for misconduct and its effect.  He acknowledged that he had been advised of the rights available to him and of the effect of any action taken by him in waiving his rights; and of the type of discharge and its effect on further enlistment or reenlistment.  The applicant also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a less than honorable discharge 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 elected not to submit a statement on his own behalf.

11.  On 22 December 2004, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  He recommended that the applicant be issued a general discharge under honorable conditions.

12.  On 23 December 2004, the applicant’s brigade commander approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation  635-200 by reason of misconduct with the issuance of a general discharge under honorable conditions.

13.  On 12 January 2005, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  The DD Form 214 shows he had completed a total of 3 years, 9 months, and 10 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry “JKK” and item 27 (Reentry Code) shows the entry “4.”  

14.  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 regulation.

15.  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), covers the eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U. S. Army Reserve.  Table 3-1 includes a list of the Regular Army RE codes.  An 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.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that SPD codes are three-character alphabetic combinations which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "JKK" is the correct code for Soldiers separated under the provisions of chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct.

17.  The SPD/RE Code Cross Reference Table, dated 31 March 2004, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of “4” should be upgraded to a favorable code that would allow him to reenter the military. 

2.  The evidence of record confirms the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under this paragraph is "Misconduct” and the appropriate RE code associated with this discharge is a RE code of “4.”

3.  There does not seem to be any correlation between the applicant's use/abuse of illegal drugs and the reenlistment promise.  Even if such correlation could be found, there were other legitimate ways the applicant could have utilized to address his reenlistment option had he chosen to do so.

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 did not 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.



      _______ _   _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)                                         AR20090005168



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ABCMR Record of Proceedings (cont)                                         AR20090005168



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