BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010458 


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, an upgrade of his reentry (RE) code from RE-3 to RE-1.

2.  The applicant states, in effect, he received an RE-3 code based on testing positive for marijuana.  He claims this occurred a month or two after his return from Iraq and that he has had no problem since.  He would like his RE code upgraded so he can reenter active duty service.

3.  The applicant provides a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) and DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he enlisted in the South Carolina Army National Guard (SCARNG) on 1 October 2001.  He was trained in, awarded, and served in military occupational specialty (MOS) 31R (Multichannel Transmission Systems Operator/Maintainer).  He was advanced to the rank/grade of private first class (PFC)/E-3 on 1 February 2003 and this was the highest rank/grade he attained during his tenure of military service.

3.  The applicant's record shows he was ordered to active duty in support of Operation Enduring/Iraqi Freedom and he entered active duty on 10 February 2003.  He served in Kuwait/Iraq from 19 April 2003 to 18 April 2004, and he was honorably released from active duty (REFRAD) and returned to his SCARNG unit on 23 May 2004.  The DD Form 214 he was issued at the time shows he earned the Global War on Terrorism Expeditionary Medal, Army Service Ribbon, and Army Achievement Medal.  

4.  An Office of the Adjutant General, Columbia, SC, memorandum, subject: Notification of Positive Drug Retest, dated 17 December 2004, confirms the applicant tested positive for THC (marijuana) on 4 December 2004.

5.  On 5 February 2005, the applicant completed a memorandum, subject:  Election of Options, in which he indicated that he accepted the results of the initial urinalysis test and that he did not request retesting.  He further elected to be separated from the SCARNG.  He was processed for separation and on
25 February 2005 he was accordingly discharged from the SCARNG.

6.  The NGB Form 22a issued to the applicant on 25 February 2005, the date of his discharge, shows he completed a total of 3 years, 4 months, and 22 days of military service and he received a general, under honorable conditions discharge. It also shows he was separated under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-28(2)a, by reason of acts or patterns of misconduct, and that he received a general, under honorable conditions discharge.  It further shows that based on the authority and reason for his discharge, he was assigned an RE code of 3.

7.  National Guard Regulation 600-200, paragraph 6-35, contains guidance on RE code assignment.  It states, in pertinent part, that an RE-3 or RE-4 code will be assigned to members separated by reason of acts or patterns of misconduct, including abuse of illegal drugs.

8.  Table 6-1of this regulation further shows that an RE-1 code applies to persons who are fully qualified for reentry; RE-3 code applies to persons who are not fully qualified for reentry or continuous service at time of separation, but this disqualification is waivable; and an RE-4 code applies to persons who are ineligible for enlistment/reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE-3 code should be upgraded to allow him to reenter active duty service was carefully considered.  However, there is insufficient evidence to support this request.  By regulation, the appropriate code to assign members of the ARNG discharged by reason of acts or patterns of misconduct is either RE-3 or RE-4.

2.  The evidence of record confirms the applicant's separation processing, to include his RE code assignment, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughput the separation process.  As a result, based on his record of service and absent any evidence of error or injustice in the separation process, the RE-3 code assigned the applicant was and remains valid.  Therefore, there is no basis for granting the applicant's requested relief.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

4.  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)                                         AR20090010458



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ABCMR Record of Proceedings (cont)                                         AR20090010458



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