IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100008472 


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 (RE) code be changed from RE-3 to RE-2.

2.  He states he is trying to enlist in the service.  He was told by his local recruiter they don’t accept RE-3s, but if he amends or changes that code, he could enlist.  He really wants to get back in the service, he misses it, and after 6 years still can’t shut up about it.  

3.  He provides no additional documentation 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's military records show he enlisted in the Regular Army in pay grade E-1 on 24 October 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty 19K (M1 Armor Crewman).  He was promoted to pay grade E-3 on 1 March 2004.

3.  On 26 May 2004, his command was notified he had been identified as testing positive for marijuana on 25 April 2004.

4.  On 21 July 2004, he was punished under Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana between 26 March and 26 April 2004.  

5.  In August 2004, he was notified by his company commander of action being initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 14-12c, for commission of a serious offense, illegal drug use, with a general discharge.  

6.  On 13 August 2004, after consulting with counsel, he acknowledged receipt of the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, and the rights available to him.  He also acknowledged that he might receive a general discharge.  He elected not to submit a statement in his own behalf.

7.  On 18 August 2004, his squadron commander recommended approval of the separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge.  On 19 August 2004, his separation was found to be legally sufficient.

8.  On 26 August 2044, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.

9.  He was discharged in pay grade E-3 on 16 September 2004 under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct, with a general discharge.  He was credited with completing 1 year, 10 months, and 28 days of net active service.  Item 26 (Separation Code) of his DD Form 214 shows "JKD” and Item 27 shows a RE Code of "3." 

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provided that prior to discharge or release from active duty individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed 

Forces reentry codes, including Regular Army RE codes.  RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  RE-2 is not currently used (discontinued in March 1995).  

11.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator (SPD) codes to be used for these stated reasons.  The regulation showed the SPD of "JKD" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "misconduct" and the authority for discharge was Army Regulation 635-200, paragraph 14-12c(1).

12.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  It also showed SPD Codes with their corresponding RE Code.  The SPD Code of “JKD” had a corresponding RE Code of “3.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged on 16 September 2004, under the provisions of Army Regulation 635-200, paragraph 14-12c(1).  He was issued an SPD code of "JKD” which had a corresponding RE code of "3." The RE code applied to his DD Form 214 is commensurate with and corresponds to the reason for his discharge.

2.  The evidence does not show and he has provided no evidence to show his separation which resulted in him receiving an RE code of "3" was unjust.   Therefore, he has established no basis for changing his existing 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)                                         AR20100008472



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ABCMR Record of Proceedings (cont)                                         AR20100008472


   
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