IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100008506 


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 her reentry eligibility (RE) code be changed so she can enlist.

2.  The applicant states:

* action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed
* rehabilitation was not attempted or even evaluated
* the Army Discharge Review Board (ADRB) states the evidence of record shows her separation action was improperly approved at the special court-martial convening authority level
* the ADRB determined the discharge was improper and her general discharge was upgraded to honorable
* she completed a rehabilitation program
* she points out that her ADRB proceedings indicate a change to an RE code does not fall within the purview of that board
* she worked with six recruiters to obtain waivers for enlistment, but she was unsuccessful

3.  The applicant provides:

* a discharge summary from an outpatient substance abuse treatment program
* ADRB proceedings

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 4 January 2001 for a period of 3 years.  She served as a nuclear medical specialist in Southwest Asia from 15 October 2001 to 28 February 2002.

3.  On 26 January 2002, nonjudicial punishment was imposed against the applicant for violating a lawful general order in Saudi Arabia by wrongfully possessing and consuming an alcoholic beverage.

4.  On 9 September 2002, nonjudicial punishment was imposed against the applicant for amphetamine and methamphetamine use.

5.  On 19 November 2002, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (commission of a serious offense).  On 20 December 2002, the separation authority approved the recommendation for separation and directed that the applicant be issued a general discharge.

6.  On 4 January 2003, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  She had completed 2 years, 6 months, and 10 days of creditable active service.

7.  Item 25 (Separation Authority) of the applicant's original DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Army Regulation 635-200, paragraph 14-12c(2)."  Item 26 (Separation Code) shows the entry "JKQ."  Item 27 (Reentry Code) shows the entry "3."  Item 28 (Narrative Reason for Separation) shows the entry "misconduct."

8.  On 9 May 2004, the applicant applied to the ADRB for an upgrade of her discharge.  On 12 January 2005, the ADRB considered the applicant's request for a discharge upgrade.  Based on a records review, the ADRB determined that her separation action was improperly approved at the special court-martial convening authority level.  As a result, the ADRB upgraded the applicant's discharge to an honorable discharge.  The ADRB also directed that her narrative reason for separation be changed to "Secretarial Authority" under the provisions of Army Regulation 635-200, paragraph 5-3.  These proceedings state, in pertinent part, "This action does not entail a change to the RE code…A change to RE codes does not fall within the purview of this Board."  However, this statement is incorrect.  The ADRB can consider a change to an RE code.

9.  On 14 January 2005, the applicant was issued a new DD Form 214.  Item 25 shows the entry "Army Regulation 635-200, paragraph 5-3."  Item 26 shows the entry "JFF."  Item 27 shows the entry "3."  Item 28 shows the entry "Secretarial Authority."

10.  In support of her claim, the applicant provided a successful discharge summary which states she completed an outpatient substance abuse treatment program on 28 April 2009.

11.  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 SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code "JFF" is "Secretarial Authority" and the regulatory authority is Army Regulation 635-200, paragraph 5-3.

12.  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, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* 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

13.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that when the SPD code is "JFF," the Department of the Army directive authorizing the separation program or specific separation will provide the RE code.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the ADRB's decision to upgrade her discharge and change the reason for her separation, it appears she was issued the correct RE code.  The applicant provided no evidence which shows her RE code is incorrect and there is no issue of equity that demands it be changed based upon the ADRB's action.  Therefore, there is no basis for granting her request.

2.  The applicant's contention that she worked with six recruiters to obtain waivers for enlistment but was unsuccessful was noted.  However, her current RE code is a waivable disqualification.  Therefore, as recruitment requirements change, the applicant may still apply for service in the Armed Forces and request the appropriate waiver.

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)                                         AR20100008506



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ABCMR Record of Proceedings (cont)                                         AR20100008506



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