IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019720 


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, in effect, upgrade of his under other than honorable conditions discharge and change of his RE-3 reentry code.

2.  The applicant states he served for 2 years, 9 months, and 28 days.

3.  The applicant provides his DD Form 214 (Certificate of 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.  The applicant enlisted in the Regular Army on 8 September 1987 for a period of 4 years.  He trained as an indirect fire support infantryman.
3.  On 11 October 1989 and 21 June 1990, nonjudicial punishment (NJP) was imposed against the applicant for using marijuana.

4.  On 13 August 1990, a Bar to Reenlistment Certificate was imposed against the applicant.

5.  On 18 September 1990, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct (abuse of illegal drugs).  On 24 October 1990, the separation authority approved the recommendation for separation and directed the issuance of an under other than honorable conditions discharge.  On 1 November 1990, he was discharged by reason of misconduct (commission of a serious offense).  He served 3 years, 1 month, and 24 days of total active service.

6.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12c.”  Item 26 (Separation Code) shows the entry "JKQ."  Item 27 (Reentry Code) shows the entry "RE-3."  Item 28 (Narrative Reason for Separation) shows the entry "Misconduct - Commission of a Serious Offense.”

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.


10.  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 “JKQ” is “Misconduct - commission of a serious offense” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

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 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.

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

12.  The SPD/RE Code Cross Reference Table, dated 2 October 1989, shows when the SPD is "JKQ" an RE code of 3 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record of service included two NJPs for drug abuse and a Bar to Reenlistment Certificate.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns but he failed to do so.  

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


4.  His RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100019720



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ABCMR Record of Proceedings (cont)                                         AR20100019720



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