DOCKET NUMBER:  AR20100017513 


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 eligibility (RE) code be changed from "4" to "3."

2.  He states that after speaking with many recruiters he was advised that because he received a general under honorable conditions discharge, he should not have received an RE code of "4" and it should be changed to a "3."  He states he was in training when he was discharged and made a mistake.  Therefore, he should be given the chance to serve his country honorably if he chooses to do so in the future.

3.  He provides a copy of his DD Form 214 (Certificate or Release or Discharge from Active Duty).

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.  He enlisted in the Regular Army on 27 July 2006.

3.  On 24 February 2007, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 19 December 2006 and 3 January 2007.

4.  On 20 March 2007, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c(2), by reason of misconduct for abuse of illegal drugs.  The commander recommended that he be separated with a general under honorable conditions discharge.

5.  On 17 April 2007, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct for abuse of illegal drugs and directed that he receive a general under honorable conditions characterization of service.

6.  The DD Form 214 he was issued shows he completed a total of 8 months and 28 days of active military service.  The DD Form 214 also shows his character of service as general under honorable conditions; the separation authority as Army Regulation 635-200, paragraph 14-12c(2); the separation code as "JKK"; his RE code as RE-4; and the narrative reason for his separation as "misconduct (drug abuse)."

7.  On 5 September 2007, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his general discharge to an honorable discharge.  He stated he made a mistake and did not have any documentation to prove he was right.

8.  On 17 July 2008, the ADRB disapproved the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter  4 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general under honorable conditions discharge or an honorable discharge may be granted.

10.  Army Regulation 635-5-1 (Separation Code Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code JKK, which was the SPD code shown on his DD Form 214, was the appropriate code to assign to Soldiers discharged under the provisions of Army Regulation 635-200 by reason of misconduct (drug abuse).  The SPD/RE code Cross Reference Table stipulates that an RE-4 will be assigned to members separated under these provisions with an SPD code of JKK.

11.  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 and 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.

	a.  RE–1 applies to Soldiers completing their terms 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.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his discharge for misconduct for drug abuse.  There is no evidence of record and the applicant did not provide any evidence as a basis to warrant a change to his reason for separation.

2.  An SPD code of "JKK" applies to persons who are administratively discharged for the commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  The SPD/RE code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned to individuals discharged for misconduct - drug abuse.  Therefore, there is no basis for granting the applicant's requested relief in this case.

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 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)                                         AR20100017513



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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