IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090009373 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.  He also requests that his Reentry Eligibility (RE) Code be changed from RE-3 to RE-1.

2.  The applicant states he was once a proud Soldier serving in the U.S. Army and he diligently applied himself to being the best infantryman possible.  He also states he worked hard to be in top mental and physical shape.  He further states that he faltered from the path of honor and duty twice in 10 days and he has carried the guilt from his actions.  The applicant adds that he has been clean from drugs for 10 years and concludes by requesting favorable consideration of his request so that he may reenlist in the Army and defend the United States of America and its allies against all enemies.

3.  The applicant provides, in support of his application, three letters from family members and 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 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 enlisted in the Regular Army (RA) on 28 April 1988 for a period of 4 years.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 4 December 1991, the applicant received nonjudicial punishment under Article15, Uniform Code of Military Justice, for, on some occasion or occasions between 30 August and 3 September 1991 in the Republic of Panama, wrongfully using cocaine.  His punishment consisted of reduction to private (PV1)/E-1, forfeiture of $380.00 per month for two months, and 45 days of restriction and extra duty.

4.  On 13 December 1991, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious offense.  The commander stated that the reason for the proposed separation was the applicant's illegal use of cocaine on at least two separate occasions.  The applicant was also advised of his rights and the procedures involved.

5.  On 16 December 1991, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers, waived a personal appearance before an administrative separation board, waived consulting counsel and representation by counsel, and elected not to submit statements in his own behalf.

6.  On 17 December 1991, the company commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, based on commission of a serious offense.

7.  On 17 December 1991, the battalion commander indicated that he had reviewed the separation action pertaining to the applicant, recommended approval of his separation, and that his service be characterized as under honorable conditions.
8.  On 22 December 1991, the authorized separation authority in the applicant's case approved the recommendation for separation.  He also directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on commission of a serious offense (abuse of illegal drugs) and that the applicant be issued a General Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 14 January 1992 in accordance with the provisions of Army Regulation 635-200, paragraph
14-12c, based on misconduct - abuse of illegal drugs, and his service was characterized as under honorable conditions.  Based on the authority and reason for his separation, the applicant was issued Separation Code "JKK" and assigned an RE Code of 3.  At the time he had completed 3 years, 8 months, and 17 days of net active service during the period of service under review.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  There is no evidence in the applicant's military service records that shows he applied for a waiver of his RE Code to reenter military service and/or that his request was denied.

12.  The applicant submitted three letters of support from his mother, brother, and sister.  These family members attest to the applicant staying drug-free for the past 10 years and having learned from his past mistakes.  They also state he is honest and trustworthy.  The family members add that the applicant has a strong desire to serve in the U.S. Army and they endorse his efforts to obtain a change to his RE Code so that he may reenter the U.S. Army.

13.  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, and convictions by civil authorities.  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 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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-5-1 (Separation Program Designator (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. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, paragraph 14-12c, based on misconduct - abuse of illegal drugs.

16.  The SPD Code/RE Code Cross Reference Table shows that a Soldier issued an SPD Code of "JKK" will be assigned an RE Code of 3.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

18.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers, as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless 
indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, VA; Commander, USA HRC, St. Louis, MO; or the 	Commanding General, U.S. Army Recruiting Command, will be forwarded by the recruiter to the appropriate email address.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge and that his RE Code should be changed to RE-1 because he regrets the actions that led to his discharge and he would like to reenter the U.S. Army.
2.  The support letters provided by the applicant's family members were carefully considered.  However, these letters alone are not sufficiently mitigating to support granting the applicant's requested relief.

3.  The evidence of record shows the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, based on misconduct - abuse of illegal drugs, was proper and equitable and in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The RE Code of 3 that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the RE Code 3 assigned at the time of the applicant's discharge was, and remains, valid.  

5.  The applicant's request for upgrade of the character of service of his discharge and change of the RE Code that he was assigned in conjunction with his discharge from the U.S. Army, along with the applicant's record of service during the period of service under review and his post-service conduct were carefully considered.

   a.  The evidence of record shows that, during the applicant's period of military service under review, he received nonjudicial punishment for wrongfully using cocaine.  Thus, the evidence of record shows that the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.
   
   b.  The applicant's record of service prior to his misconduct and his post-service conduct are noteworthy.  However, they do not sufficiently mitigate the authority and reason for his discharge or the RE Code he was assigned.

   c.  Therefore, in view of all of the foregoing, the applicant is not entitled to an honorable discharge or a change to his RE code.

6.  Individuals, including prior service personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.  Accordingly, the applicant is advised that, although no change is being recommended to his RE Code, this does not mean that he is disqualified from enlistment in the U.S. Army, as the RE-3 code he was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, he should contact a local recruiter to determine his eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a prior service member as to the needs of the Service and are required to process waivers of RE codes.

7.  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.

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)                                         AR20090009373



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ABCMR Record of Proceedings (cont)                                         AR20090009373



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