BOARD DATE:	  12 November 2009

		DOCKET NUMBER:  AR20090011101 


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 record be corrected to show he completed 2 years of service and that his reentry eligibility (RE) code of RE-4 be changed to a more favorable RE code.

2.  The applicant states, in effect, he is a veteran who would like to continue his education; however, he is 24 hours shy of 2 years of active duty service, which is required for him to receive education benefits.  He states that he would also like his RE code changed to allow him the option to enlist.  He further states he is currently working as a corrections officer.

3.  The applicant provides no additional documentation 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 records show he enlisted in the Regular Army (RA) and entered active duty on 10 June 1997.  He was trained in, awarded, and served in military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained while serving on active duty was private first class.  His record shows that during his tenure on active duty he earned the Army Service Ribbon.  The record documents no acts of valor or significant achievement.

3.  On 29 January 1999, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.  His punishment for this offense was a reduction to private/E-1, a forfeiture of $463.00, and 45 days of restriction and extra duty.

4.  On 21 April 1999, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense.  He cited the applicant's wrongful use of a controlled substance, his numerous failures to repair, being drunk on duty, failure to pay just debts, and making a false official statement as the reasons for the proposed separation action.

5.  On 21 April 1999, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of waiver of those rights.  Subsequent to this counseling, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a general under honorable conditions discharge (GD).  The applicant also elected not to submit a statement in his own behalf.

6.  On 19 May 1999, the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, and directed that he receive a GD.  On 8 June 1999, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows in item 12a (Date Entered Active Duty This Period) that he entered active duty on 10 June 1997 and item 12b (Separation Date This Period) shows he was separated on 8 June 1999.  Item 12c (Net Active Service This Period) shows he completed a total of 1 year, 11 months, and 29 days of active military service.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 confirms he was separated under the provisions of paragraph 14-12c(2), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), and item 28 (Narrative Reason for Separation) shows the reason for his separation was "misconduct."  Item 26 (Separation Code) and item 27 (Reentry Code) show that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of "JKK" and an RE-4 code.

8.  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, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c(2) pertains specifically to a commission of a serious offense that is drug-related.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

9.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility criteria for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 applies to members permanently disqualified from further service.

10.  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 of JKK is the appropriate code to assign to Soldiers separated under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct (commission of a serious offense – drug-related).  The SPD/RE Code Cross Reference Table confirms RE-4 is the applicable code to assign members separated under this provision of the regulation who are assigned an SPD code of JKK.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains preparation instructions for the DD Form 214.  It states, in pertinent part, that the entry in item 12c will be the amount of service this period computed by subtracting item 12a from 12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be credited with additional service in order to receive education benefits and that his RE-4 code should be upgraded to allow him to enlist was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's discharge processing 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 throughout the separation process.

3.  The evidence of record further confirms the applicant entered active duty on 10 June 1997 and that he was separated on 8 June 1999, which totals 1 year, 11 months, and 29 days as is documented in item 12c of his DD Form 214.  Further, the responsibility for the administration of education benefits rests with the Department of Veterans Affairs and is not within the purview of this Board.  As a result, absent any evidence of error or injustice in the applicant's discharge processing, there is an insufficient evidentiary basis to grant the applicant additional credit for service he did not perform.

4.  By regulation, RE-4 is the proper code to assign members assigned a SPD code of JKK based on being separated under the provisions of paragraph 
14-12c, Army Regulation 635-200, by reason of misconduct (abuse of illegal drugs).  As a result, under current Army regulatory provisions, the applicant is permanently disqualified from further service.

5.  The applicant knowingly risked his military career by using illegal drugs and this misconduct clearly supported the ultimate discharge action taken that resulted in the assigned RE code.  As a result, given he is permanently disqualified from enlistment based on the authority and reason for his discharge, the RE-4 code is valid and there is an insufficient evidentiary basis to support changing it at this time.

6.  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 the aforementioned 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)                                         AR20090011101



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ABCMR Record of Proceedings (cont)                                         AR20090011101



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