IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009664 


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 of RE-3 be changed to an RE-1 code.   

2.  The applicant states, in effect, he believes his RE code should be changed due to the circumstances surrounding his discharge and because his discharge was upgraded to an honorable discharge (HD) by the Army Discharge Review Board (ADRB).  He claims he would like his RE code changed in order to allow him to reenter military service.  

3.  The applicant provides no documentary evidence in support of 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 record shows that he enlisted in the Regular Army and entered active duty on 25 January 1996, and was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).  

3.  The applicant's record shows he was promoted to sergeant (SGT) on 
1 September 2001, and that this is the highest grade he attained while serving on active duty.  

4.  On 16 January 2003, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for three specifications of failing to report to his appointed place of duty at the prescribed time and for one specification of leaving his appointed place of duty without authority.  His punishment for these offenses was a reduction to SPC, forfeiture of $876.00 (suspended), and 45 days of extra duty and restriction (suspended).  

5.  A U. S. Army Criminal Investigation Command (USACIDC, also known as CID) report on file shows that on 18 November 2002, the applicant's first sergeant notified the CID that the applicant had admitted to him that while on leave in Florida he distributed marijuana.  The CID investigation established probable cause to believe the applicant committed the offense of wrongful distribution of a controlled substance when he delivered 2 to 2 1/2 pounds of marijuana from Jacksonville to Daytona, Florida.  It indicated that the applicant had confessed that on 12 November 2002 he used his privately owned vehicle to deliver 2 to 2 1/2 pounds of marijuana from Jacksonville to Daytona, Florida.  

6.  On 25 September 2003, the applicant's commander recommended his discharge under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense.  He cited the offenses committed by the applicant that resulted in the 16 January 2003 NJP action, an incident of the applicant being disrespectful to a noncommissioned officer (NCO), repeated  failure to go to his appointed place of duty at the prescribed time, and finally his wrongful distribution of marijuana as the reasons for taking the action.  

7.  On 8 October 2003, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense and directed the applicant be issued a general, under honorable conditions discharge (GD).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time of his discharge on 23 October 2003 shows that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of JKQ and an RE code of RE-3.  

8.  On 13 September 2006, after concluding the applicant's discharge was improper, the ADRB voted to upgrade his discharge to fully honorable and to change the authority and reason for his separation to paragraph 5-3, Army Regulation 635-200, by reason of secretarial authority.  The ADRB specifically indicated that the vote and change did not entail a change to his RE code.  The DD Form 214 he was issued based on this ADRB action shows that based on the authority and reason for discharge cited by the ADRB, he was assigned a SPD code of JFF and an RE code of RE-3.  

9.  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.  It states, in pertinent part, that the SPD code JFF is the appropriate code to assign to Soldiers separated under the provisions of chapter 5, Army Regulation 635-200, by reason of secretarial authority.  The Department of the Army (DA) SPD/RE Code Cross Reference Table indicates that the Headquarters, DA (HQDA) directive authorizing the specific separation will provide the RE code assigned to members separated under these provisions with an SPD code of JFF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded based on the circumstances surrounding his discharge processing and the upgrade action of the ADRB was carefully considered.  However, by regulation, in the case of member separated under the provisions of paragraph 5-3, Army Regulation 
635-200, by reason of secretarial authority, the HQDA directive authorizing the separation will provide the RE code.  In this case, the ADRB specifically determined that the upgrade action it took on the applicant would not entail a change to the RE code.  As a result, the RE-3 code he was assigned with his original discharge was and remains valid and unchanged.  

2.  Although the applicant's discharge was ultimately upgraded by the ADRB based on the use of inappropriate notification procedures, his record clearly documents the misconduct that resulted in his original discharge.  As a result, it would not be appropriate or serve the interest of equity or justice to change the RE-3 code originally assigned by the separation authority and affirmed by the ADRB.  

3.  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)                                         AR20090009664



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ABCMR Record of Proceedings (cont)                                         AR20090009664



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