IN THE CASE OF:
BOARD DATE: 17 May 2011
DOCKET NUMBER: AR20100024859
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, correction of his reentry eligibility (RE) code to a code that will allow him to reenlist.
2. The applicant states he was young when he was in the Army and he made some mistakes.
3. The applicant provides a letter from the North Carolina Department of Administration, dated 29 September 2010.
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 applicants 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 applicants 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 2 June 2006. He completed training as an infantryman.
3. On 16 January 2007, the applicant was counseled for wrongful use of a controlled substance. According to the information contained on the DA Form 4856 (Developmental Counseling Form), it was his second offense of testing positive for cocaine. During counseling, he was advised of his rights and told that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14-12c, for patterns of misconduct commission of a serious offense.
4. He was counseled on 17 January 2007 for:
* Underage drinking
* Assault
* Absence without leave (AWOL)
5. Nonjudicial punishment was imposed against the applicant on 2 February 2007 for wrongful use of cocaine on two separate occasions and underage drinking.
6. On 26 March 2007, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct commission of a serious offense. His commander cited wrongful use of drugs and underage drinking as the basis for his recommendation. He acknowledged receipt of the notification. After consulting with counsel, he elected not to submit a statement in his own behalf.
7. The appropriate authority approved the recommendation for discharge on 10 April 2007 and he directed the issuance of a general discharge certificate. On 20 April 2007, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct drug abuse.
8. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he had completed 11 months and 8 day of net active service this period. He was issued an RE code of 4 and a JKK (misconduct) separation program designator (SPD).
10. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states 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. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE code 4 applies to persons who have a non-waivable disqualification.
11. Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.
12. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers. SPD code JKK has a corresponding RE code of 4.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. However, there is no error or injustice in his assigned RE code.
2. His records show he was discharged for misconduct drug abuse. He was assigned an RE code 4 and a JKK SPD code based on his reason for discharge.
3. As previously stated, an RE code of 4 applies to persons who are not considered qualified for reentry or continuous service. The fact that he desires to reenlist in the Army is not a sufficient justification for changing his RE code 4.
4. In view of the foregoing, his request should be denied.
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) AR20100024859
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ABCMR Record of Proceedings (cont) AR20100024859
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