IN THE CASE OF:
BOARD DATE: 1 October 2009
DOCKET NUMBER: AR20090008401
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 Eligibility (RE) code of 4 be changed to a waivable RE code of 3.
2. The applicant states, in effect, that he desires his RE code to be changed because he has changed his life for the better, he has a family which includes two children, and he wants his family to have a better life.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 11 July 1977 and enlisted in New Orleans, Louisiana on 2 January 1997 for a period of 4 years, training as a cannon crewman and a cash enlistment bonus. He completed his training and was transferred to Germany for assignment to a field artillery battery.
3. Nonjudicial punishment (NJP) was imposed against the applicant on two occasions (8 June and 26 October 1998) and both resulted in a reduction in rank.
4. On 3 December 1998, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense. He cited as the basis for his recommendation that the applicant had received multiple NJPs for wrongfully possessing 22 grams of hashish, for testing positive for marijuana during a unit urinalysis, and for failure to repair.
5. After consulting with defense counsel, the applicant waived all of his rights and elected not to submit a statement in his own behalf.
6. The appropriate authority approved the recommendation for discharge and directed that the applicant be discharged under honorable conditions.
7. Accordingly, he was discharged under honorable conditions on 11 December 1998, under the provisions of Army Regulation 635-200, paragraph 14-12C(2) for misconduct. He had served 1 year, 11 months, and 10 days of total active service and he was issued a separation code of "JKK" and an RE code of 4.
8. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that a separation code of JKK will be issued to enlisted personnel separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to misconduct.
9. An RE code of 4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as commission of serious offenses, which includes the abuse of illegal drugs. An RE code of 4 is issued in conjunction with a separation code of JKK.
DISCUSSION AND CONCLUSIONS:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
2. The applicants administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicants rights.
3. As the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct due to abuse of illegal drugs he was properly issued a separation code of JKK and an RE code of 4 in accordance with the applicable regulations.
4. The applicant's contentions have been noted; however they are not sufficiently mitigating to warrant relief when compared to his otherwise undistinguished record of service during such a short time.
5. Inasmuch as the applicant has failed to show through the evidence submitted or the evidence of record that the RE code issued to him at the time of separation was in error or unjust, there appears to be no basis to grant his 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.
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