IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017343 


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 (RE) Code from RE-3 to RE-3A [sic] (a more favorable code so that he may reenter the military). 

2.  The applicant states he served his country honorably for over 4 years.  He participated in the greatest search and rescue missions in America's history including the Honduras Rescue and the Venezuela Flood Recovery operations and he received numerous awards and medals in recognition of his service.  He made one mistake during 4 years and 6 months of service.  He is sorry for his actions and would like a second chance.

3.  The applicant did not provide any additional evidence.

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 records show he enlisted in the Regular Army on 20 July 1995 and held military occupational specialty 93P (Aviation Operations Specialist).  He served in Panama from 7 March 1997 to 6 March 2000 and attained the rank/grade of sergeant/E-5.

3.  His records also show he was awarded the Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer's Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Parachutist Badge.

4.  On 13 December 1999, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana between on or about 1 September and 1 October 1999.  

5.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 16 March 2000 under the provisions of paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) by reason of misconduct with a character of service of under honorable conditions (general).  This form further shows he completed 4 years, 7 months, and 27 days of creditable active service.  Additionally, this form shows in:

* Item 26 (Separation Code), the entry "JKQ"
* Item 27 (Reentry Code), the entry "3"

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes 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, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army RE codes.

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.

9.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKQ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 16 March 2000 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense, illegal abuse of drugs with a character of service of under honorable conditions (general). 

2.  His RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate RE code associated with this type of discharge is an RE-3 which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

3.  The applicant's desire to join the Army to serve his country is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s 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)                                         AR20100017343



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ABCMR Record of Proceedings (cont)                                         AR20100017343



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