IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000929 


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 an upgrade of his reentry eligibility (RE) code of 4.

2.  He states, in effect, that when he attempted to enlist in the U.S. Army Reserve in 2005, he was informed he is not eligible to reenter the service because his RE code is 4.  He submitted a request to the Army Discharge Review Board (ADRB) and was granted an upgrade of the characterization of his service from general under honorable conditions to fully honorable.  In light of the fact that his discharge was upgraded, he believes his RE code should also be upgraded.

3.  The applicant provides copies of:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* eight documents showing he successfully completed a program offered by the National Center for Construction Education and Research (NCCER)
* eight character reference letters

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 Regular Army (RA) on 31 July 1992.  Upon completion of initial entry training, he was awarded military occupational specialty 77F (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  On 3 March 1997, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense consisting of a civil conviction for driving under the influence and for wrongful use of an illegal drug (marijuana).

4.  He was advised of his rights and the impact of the discharge.  He waived his right to legal counsel and did not submit a statement in his own behalf.  The unit commander subsequently recommended that the applicant be separated from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

5.  On 25 March 1997, the separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, and that he be issued a General Discharge Certificate.

6.  On 23 April 1997, the applicant was discharged accordingly.  His initial DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) with a Separation Program Designator (SPD) code of JKK and an RE code of 4
* his narrative reason for separation was "Misconduct"

7.  On 27 November 2006, the President of the ADRB informed him that board reviewed his case and in light of his previous honorable service concluded his original characterization of service was too harsh.  The ADRB determined relief was warranted in the form of an upgrade of his characterization of service to honorable, but further determined the narrative reason for separation remained both proper and equitable.

8.  Accordingly, he was issued a revised DD Form 214 showing he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) with an SPD code of JKK and an RE code of 4.  His narrative reason remains "Misconduct."

9.  He provides eight documents showing he successfully completed a program offered by the NCCER.

10.  He also provides eight character reference letters rendered by friends and acquaintances essentially attesting that the applicant is a good husband, father, and member of the community.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration term of service date.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

12.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated, in pertinent part, that the SPD code of JKK was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).

13.  The SPD/RE Code Cross Reference Table indicates that an RE code of 4 was the proper code to assign members separated with an SPD code of JKK at the time of the applicant's discharge.

14.  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 United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 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.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded was carefully considered and determined to lack merit.

2.  The applicant was appropriately assigned an RE code of 4 based on his narrative reason for separation and his SPD code.

3.  Although the ADRB upgraded the characterization of his service to honorable, they also determined his narrative reason for separation remained both proper and equitable.  Accordingly, his narrative reason for separation and corresponding SPD and RE codes were not changed when he was issued a new DD Form 214.

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)                                         AR20100000929



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)