IN THE CASE OF:	

		BOARD DATE:	30 July 2009  

		DOCKET NUMBER:  AR20090005204 


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, that his Reentry (RE) Code 4 be changed so that he may reenlist in the Army. 

2.  The applicant states that he wants to continue to serve his country. 

3.  The applicant provides, in support of his application, copies of the Army Discharge Review Board (ADRB) case report and directive, dated in 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.  On 11 July 1996, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).
3.  On or about 5 December 1996, the applicant was assigned for duty as a motor transport operator with the 782nd Main Support Battalion, Fort Bragg, North Carolina.  On 28 February 2000, he was reassigned to Fort Campbell, Kentucky.  

4.  On 6 September 2001, the applicant was promoted to sergeant, pay 
grade E-5.

5.  On 2 November 2004, the appropriate authority directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, the commission of a serious offense.  The applicant wrongfully used cocaine.  A general, under honorable conditions discharge was directed.

6.  On 15 November 2004, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2).  Accordingly, he was given a Separation Program Designator (SPD) Code of JKK and an RE Code of 4.  His character of service was under honorable conditions.  

7.  On 7 October 2005, the ADRB reviewed the applicant's request for an upgrade to his discharge.  The ADRB determined, on the basis of his length and quality of service, that his characterization of service was too harsh, and voted to change it to honorable.  The ADRB also determined that the narrative reason was both proper and equitable.

8.  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.  A discharge under other than honorable conditions is normally considered appropriate for the commission of a serious offense.

9.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

10.  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.  The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 14-12c(2), misconduct (Drug Abuse).  Additionally, the SPD/RE Code Cross Reference Table) establishes RE Code 4 as the proper RE code to assign to Soldiers separated for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be changed so he can reenter the United States Army.

2.  The ADRB reviewed the applicant's discharge and made a deliberate determination that the characterization was too harsh.  At the same time, the ADRB determined that the applicant's reason for discharge was proper and equitable.

3.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090005204





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ABCMR Record of Proceedings (cont)                                         AR20090005204



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