IN THE CASE OF:	  

		BOARD DATE:	        27 August 2009

		DOCKET NUMBER:  AR20090006318 


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 Eligibility (RE) Code of 3 be changed so that he may reenlist in the Army. 

2.  The applicant states, in effect, that he was wrongfully accused and discharged from the military for a crime that he did not commit.  He was discharged and assigned an RE code of 3.  He requests that his RE code be changed to a 1 so that he may be eligible to reenter in the United States Army. 

3.  The applicant provides, in support of his application, copies of a civilian court bench warrant showing that he had failed to comply with the conditions of his probation and a subsequent court notice of dismissal of probation revocation.

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 6 July 2003, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He was subsequently assigned duty at Fort Wainwright, Alaska.

3.  In March 2005, the applicant's commander initiated action to separate him from the service due to the commission of a serious offense.  The commander stated the basis for this action was the applicant’s wrongful distribution of cocaine, consumption of alcohol while under age 21, disobeying noncommissioned officers, violating lawful orders and Army regulations, and for being absent without leave (AWOL) from 15 December 2004 to 19 January 2005 (approximately 36 days).  

4.  On 22 June 2005, a board of officers convened to determine whether the applicant should be eliminated from active duty due the commission of a serious offense.  The board found that the applicant did commit a serious offense and recommended that he be separated from the military service.

5.  On 6 July 2005, the appropriate authority approved the recommendation and directed that the applicant be discharged under other than honorable conditions.  Accordingly, he was discharged, on 1 August 2005, under the provisions of Army Regulation 635-200, paragraph 14-12C for the commission of a serious offense (misconduct).  He was assigned a Separation Program Designator (SPD) Code of JKQ and an RE Code of 3.  His character of service was under other than honorable conditions.  

6.  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 that could result in a punitive discharge, 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.

7.  Army Regulation 635-200 further provides, in pertinent part, that misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.




8.  Under the Manual for Courts-Martial, the maximum punishment allowed for wrongful distribution of cocaine is a punitive discharge and confinement for 
15 years; for disobeying noncommissioned officers is a punitive discharge and confinement for 1 year; for violating lawful orders and Army regulations is a punitive discharge and confinement for 6 months; and for AWOL over 30 days is a punitive discharge and confinement for 1 year.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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 3 applies to persons separated from their last period of service with a waiverable 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 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKQ 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, for commission of a serious offense. Additionally, the SPD/RE Code Cross Reference Table establishes that an RE Code of 3 is the proper RE code to assign to Soldiers separated for this reason.

11.  The court documents provided by the applicant show that on 18 May 2006 a bench warrant was issued for his apprehension due to his failure to comply with the court's conditions of probation.  On 27 March 2009 the warrant was quashed.  These documents do not appear to be related to any of the applicant's misconduct that led to his discharge under the provisions of Army Regulation 635-200, paragraph 14-12C, for misconduct.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not commit the crime for which he was discharged and his RE code should be changed so that he may reenter the United States Army.

2.  The applicant's misconduct consisted of five different violations, four of which are serious offenses.  The applicant's contention that the civilian court cleared him of all of his misconduct is not supported by any available evidence.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The RE Code of 3, establishing his enlistment/reenlistment ineligibility without waiver, was correctly entered on his DD Form 214 in accordance with governing regulations.

6.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the assigned RE Code of 3.  The applicant’s desire to continue in the service to his country was considered; however, there are no provisions authorizing the change of an RE Code for this purpose.

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)                                         AR20090006318



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ABCMR Record of Proceedings (cont)                                         AR20090006318



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