IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090012232 


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 (RE) code be changed.

2.  The applicant states, in effect, that he believes his RE code should be changed to RE-3, RE-2, or RE-1 so that he may be eligible to enlist or get money in the form of his G.I. Bill for school.  He contends that it has been 6 years since he was discharged and his RE code does not allow him to enlist or obtain a decent career.  He indicates that he made a mistake and has paid dearly for it.  

3.  The applicant provides two character reference letters; a certificate of completion; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a letter, dated 14 July 2009, from a Member of Congress 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 enlisted in the Regular Army on 30 May 2002 and trained as an infantryman.   

3.  On 1 August 2003, nonjudicial punishment was imposed against the applicant for marijuana use.  His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty, and restriction.

4.  On 16 December 2003, the applicant was discharged under honorable conditions (a general discharge) for misconduct (drug abuse).  

5.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)."  Item 
26 (Separation Code) on his DD Form 214 shows the entry "JKK."  Item 
27 (Reentry Code) on his DD Form 214 shows the entry "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "MISCONDUCT.” 

6.  On 7 March 2008, the Army Discharge Review Board denied the applicant's request for an honorable discharge. 

7.  In support of his claim, the applicant provided two character reference letters from two fellow Soldiers.  They attest that the applicant was an outstanding Soldier, that he made a mistake, that he was hard working, and that his leadership capabilities were greatly respected and honored by all his peers. 

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKK” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).  

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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

10.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

11.  RE-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.

12.  RE-2 was rescinded effective 28 March 1995.

13.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

14.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that when the Separation Program Designator is "JKK" then an RE code of 4 will be assigned.  

DISCUSSION AND CONCLUSIONS:

1.  The character reference letters submitted on behalf of the applicant fail to show that his RE code was unjust and should be changed.

2.  An RE code is not changed for the purpose of obtaining educational benefits or employment opportunities.

3.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

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)                                         AR20090012232



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ABCMR Record of Proceedings (cont)                                         AR20090012232



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