IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100007220 


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 his discharge was upgraded due to Secretarial Authority and he would like to reenter the armed services.

3.  The applicant provides no additional documentation in support of this 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 U.S. Army Reserve (USAR) on 20 February 2002.  He completed initial entry training and was awarded military occupational specialty 92A (Automated Logistics Specialist).  He was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 
29 December 2003.

3.  His discharge proceedings are not available for review.  However, his DD Form 214 shows he was discharged on 31 August 2004, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) for misconduct.  His character of service is shown as general, under honorable conditions.  He was given a separation program designator (SPD) code of JKK and an RE code of 4.

4.  He submitted an application to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge to honorable.  The facts and circumstances in the ADRB case report and directive reveals that on 11 August 2004, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct-commission of a serious offense (abuse of illegal drugs) with a general characterization of service.  

5.  On 5 April 2006, the ADRB determined that his discharge was improper and voted to grant full relief in the form of an upgrade of his characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  The ADRB based their decision on the fact that the unit commander used "Board Procedures" when notifying the applicant that he was initiating action to separate him under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The ADRB indicated that by using "Board Procedures" the authority for approval of the applicant's separation rested with the General Court-Martial Convening Authority and the evidence of record showed that someone other than the General Court-Martial Convening Authority approved the applicant's discharge. Therefore, the discharge was improper.

6.  The ADRB did not take action to change the applicant's RE code.

7.  He was reissued a DD Form 214 that shows the narrative reason for separation as Secretarial Authority, separation code of JFF and RE code of 4.

8.  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 of term of service.
9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve. The regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  RE–4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities, the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD of JKK as shown on the applicant's original DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is Misconduct (Drug Abuse) and the authority for discharge is Army Regulation 635–200, paragraph 14–12c(2).

11.  The SPD Code/RE Code Cross Reference Table states that when the SPD is JKK then an RE code of 4 will be given.  It further states that when the SPD is JFF, as shown on the applicant's re-issued DD Form 214, the RE code is to be determined (TBD).  When the table specifies "TBD," the Headquarters, Department of the Army office authorizing the separation program or specific separation will provide the RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE code be changed so he may reenlist.

2.  He was separated by reason of misconduct (abuse of illegal drugs) and was originally given an SPD of JKK.  The SPD Code/RE Code Cross Reference Table states that SPD of JKK requires an RE code 4.  

3.  The ADRB upgraded his discharge to honorable and changed his SPD code to JFF.  His RE code was not changed.  However, there is no evidence of error or injustice.   

4.  In view of the foregoing, there is no basis to grant the relief requested.



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)                                         AR20100007220



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A