IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017592


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 his reentry eligibility (RE) code be changed to one that will permit him to reenter the Army.

2.  The applicant states his poor judgment ended his lifelong dream of military service.  But today he is a minister working with drug addicts, Human Immunodeficiency Virus positive individuals, and prisoners.  He wants to return to the military and serve as a chaplain.

3.  The applicant provides:

* A letter dated 25 September 2009
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A Miami-Dade Police Department criminal records check
* Four letters of support

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 served in the Regular Army from 18 July 1979 through 14 March 1985.  He rose to the rank of sergeant (SGT/E-5).  On or about 10 December 1984 while stationed at Schofield Barracks, HI, he tested positive for cocaine on a drug urinalysis test.

3.  The applicant was offered and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice.  He was punished as follows:

* Reduction from SGT to specialist (SPC)/E-4
* Forfeiture of $480 pay per month for 2 months
* Extra duty and restriction for 45 days

4.  On 7 February 1985, the applicant's commander notified him of his intent to initiate administrative separation action against him under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  On 11 February 1985, the applicant consulted with counsel and acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

5.  On 12 February 1985, the separation request was submitted to the approving authority.  It was approved on 20 February 1985 with the issuance of a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct, abuse of illegal drugs.  

6.  The applicant's DD Form 214 was issued on 14 March 1985.  His character of service was under honorable conditions (general).  He was discharged under the authority of Army Regulation 635-200, paragraph 14-12d by reason of misconduct – abuse of illegal drugs.  His separation program designator (SPD) code is shown as "JHJ" with a corresponding RE code of 3.

7.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  At the time of the applicant's separation, the SPD code of "JHJ" was used to represent unsatisfactory performance under chapter 13 of Army Regulation 635-200.  The SPD code for misconduct – abuse of illegal drugs was "JKK."

8.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table shows the SPD code and corresponding RE code.  During the applicant's separation, the SPD code of "JHJ" had a corresponding RE code of 3.  The SPD code of "JKK" had a corresponding 
RE code of 4.

9.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his RE code be changed so that he may become an Army chaplain.

2.  The applicant should have received an RE code of 4 based upon his correct authority and reason for separation, which would have given him an SPD code of "JKK."  Instead, he erroneously received an RE code of 3 based upon an incorrect SPD code of "JHJ."  The SPD code "JHJ" was used for Soldiers separating under chapter 13, Army Regulation 635-200 by reason of unsatisfactory performance.

3.  The applicant was a noncommissioned officer who abused illegal drugs.  Army Regulation 635-200 mandated he be discharged under chapter 14.  Instead, he was given an SPD code for a chapter 13 discharge by reason of unsatisfactory performance and a waivable RE code of 3.


4.  Although the applicant's DD Form 214 is incorrect, it is the policy of this Board not to make an applicant worse off.  Therefore, the applicant's SPD code and corresponding RE code will be allowed to stand; however, he is clearly not entitled to a more beneficial RE code despite his post-service accomplishments.

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)                                         AR20090017592



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ABCMR Record of Proceedings (cont)                                         AR20090017592



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