IN THE CASE OF:	  

		BOARD DATE:	        22 September 2009

		DOCKET NUMBER:  AR20090007100 


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 his reentry eligibility (RE) code be changed from RE-4 to a more favorable code such as RE-3 so he may reenter military service.

2.  The applicant states that he regretted his mistake and that the Army Discharge Review Board (ADRB) upgraded his character of service to fully honorable.  He would like nothing more than his RE code to change so he may serve his country proudly.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 January 2004, and a copy of the ADRB's decision, dated 13 October 2006, in support of his request.

4.  The applicant stated on his application that he submitted a letter from his employer in support of his application; however, the letter was not submitted with 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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 29 April 1999.  He completed basic combat and advanced individual training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).  His records also show he executed a 4-year reenlistment in the Regular Army (RA) on 20 December 2000 and attained the rank/grade of specialist/E-4. 

3.  The applicant’s records also show he served in Nicaragua from November 1998 to February 1999, Bosnia from January 2001 to May 2001, and Iraq from February 2003 to August 2003.  His awards and decorations include the Army Commendation Medal (2nd Award), the Army Achievement Medal (4th Award), the Joint Meritorious Unit Award, the Good Conduct Medal, the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, the Army Service Ribbon, the United Nations Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle and Machinegun Bars, the Parachutist Badge, the Driver and Mechanic Badge, one overseas service bar, the Armed Forces Service Medal, and the NATO Medal. 

4.  On 26 November 2001, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.

5.  On 6 January 2002, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $691.00 pay per month for 2 months (suspended until 16 July 2002), 45 days of restriction(suspended until 14 July 2002), and 45 days of extra duty.

6.  On 30 July 2002, 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 his wrongful use of cocaine.

7.  On 8 August 2002, the separation authority disapproved the request for discharge and directed the applicant's retention in the Army. 


8.  On 22 September 2003, the applicant participated in a unit urinalysis and his urine sample again tested positive for cocaine.

9.  On 12 November 2003, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using cocaine.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $575.00 pay per month for 2 months (suspended until 12 April 2004), 45 days of restriction, and 45 days of extra duty.

10.  On 17 December 2003, 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, for misconduct-abuse of illegal drugs, citing three prior instances of wrongfully using cocaine (the facts and circumstances surrounding his 12 December 2001 use of cocaine are not available for review with this case). 

11.  On 17 December 2003, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions 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 further elected not to submit a statement on his own behalf.

12.  On 17 December 2003, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct – abuse of illegal drugs. 

13.  On 17 December 2003, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under honorable conditions (general) character of service.

14.  On 18 December 2003, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs and directed the applicant’s service be chracaterized under honorable conditions (general).  On 12 January 2004, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under honorable conditions (general) character of service.  This form further confirms that he completed 5 years, 8 months, and 28 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."

15.  On 13 October 2006, the ADRB granted the applicant relief in the form of an upgrade of his discharge to fully honorable.  However, the ADRB determined that the reason for his discharge was both proper and equitable and voted not to change it. 

16.  Army Regulation 635-200 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.

17.  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 eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included 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 disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

18.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (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 the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "JKK" SPD code is the correct code for Soldiers separating under chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct.

19.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code should be upgraded because he would like a second chance to reenter the military.

2.  The evidence of record confirms that 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 – abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct-abuse of illegal drugs.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – drug abuse" and the appropriate RE code associated with this discharge is RE-4.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.




      __________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)                                         AR20090007100



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007100



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1