IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008063 


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 general discharge be upgraded and his reentry (RE) code be changed to 3 so he can reenlist.

2.  The applicant states:

* He has maintained employment since his discharge
* He has never failed random drug testing at work
* He has learned how to deal with personal and work related stress without turning to drugs
* He is married and has a daughter
* Working outside the military has given him the opportunity to appreciate both worlds (being a Soldier and being a civilian) 

3.  The applicant provides no documentary evidence 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 October 1998.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 13B (cannon crewmember).  He was honorably discharged on 12 September 2001 for immediate reenlistment.  He reenlisted on 13 September 2001, attained the rank of specialist, and he served in Iraq from 
15 March 2004 to 14 March 2005.  On 10 August 2005, he was honorably discharged for immediate reenlistment.  He reenlisted on 11 August 2005.   

3.  On 2 March 2006, the applicant was convicted by a summary court-martial of wrongful use of cocaine.  He was sentenced to confinement for 27 days and reduction to E-1.

4.  On 24 April 2006, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), for misconduct (commission of serious offense).  The unit commander recommended the applicant be issued a discharge under other than honorable conditions for wrongfully using cocaine.  

5.  The applicant was advised of his rights.  He consulted with legal counsel, was advised of the impact of the discharge action, and voluntarily agreed in a summary court-martial proceeding in an offer to plead guilty in a pretrial agreement to waive his rights.

6.  On 18 May 2006, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged on 31 May 2006 with a discharge under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse).  He had served a total of 7 years, 7 months, and 1 day of creditable active service.

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

9.  On 29 February 2008, the Army Discharge Review Board upgraded the applicant's discharge to under honorable conditions (a general discharge).

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Section III of Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states, in 
pertinent part, that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) 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).

13.  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 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.

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




15.  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.

16.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers assigned an SPD code of JKK will be assigned an RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant’s record of service during his last enlistment included a summary court-martial for drug abuse.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's current drug free life is commendable but not sufficient to warrant an honorable discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  There is no error in his records and he provides an insufficient reason that would justify changing his RE code.

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)                                         AR20100008063



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ABCMR Record of Proceedings (cont)                                         AR20100008063



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