IN THE CASE OF:	  

		BOARD DATE:	    17 May 2011

		DOCKET NUMBER:  AR20100027060 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code which would allow him to reenter the military.

2.  The applicant states he was very young and didn't quite understand his life or his direction and would like to correct his duty status and continue to live his life serving his country.

3.  The applicant provides a letter of support.

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 was born on 14 August 1979.  His military records show he enlisted in the Regular Army on 21 October 1998.  He did not complete initial entry training.

3.  He accepted nonjudicial punishment on 16 March 1999 for wrongfully using marijuana.

4.  On 23 April 1999, his commander notified him that he was initiating action to separate him for commission of a serious offense of wrongfully using marijuana.

5.  He was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant then waived his rights.

6.  On 11 May 1999, the separation authority directed his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of commission of a serious offense and that he receive an under other than honorable conditions discharge.

7.  On 14 May 1999, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct.  Accordingly, he was issued an under other than honorable conditions discharge, a separation program designator (SPD) Code of JKK, and an RE code of 4.  The DD Form 214 issued to him shows he completed a total of 6 months and 24 days of active military service.

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.  Paragraph 14-12c(2) states abuse of illegal drugs is serious misconduct.

9.  The letter of support provided by the applicant from a minister stated that he has become a different man since his last entry into the Army, that he has proven his leadership skills and his ability to follow, and that he believes the applicant would make a great Soldier.

10.  Army Regulation 635-5-1 (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, in pertinent part, that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA 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.

	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.  While the applicant requested a change of his RE code, it is necessary to consider whether the reason for his discharge should be changed since the RE code is based on the reason for discharge.

2.  His record shows he accepted nonjudicial punishment for wrongfully using marijuana and his reason for separation was misconduct.  His record further shows that he was permitted to consult with counsel regarding his separation.  As such, evidence shows he was properly discharged and his separation code was administratively correct and in conformance with applicable regulations at the time of his separation.

3.  Records show he was 19 years of age at the time he was discharged for misconduct.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.


4.  There is no evidence in the available record and the applicant provided no evidence that shows irregularity in the assignment of his RE code.  The applicant was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army regulations.

5.  The SPD/RE cross-reference table shows the applicant was assigned an SPD code of JKK based on the reason for discharge.  As such, he was properly assigned an RE code of 4.

6.  While the applicant admits his mistake and desires to reenter military service, these is an insufficient basis to change a properly-assigned RE code.  Therefore, the applicant's RE code is correct and there is no reason to change it.

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)                                         AR20100027060



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ABCMR Record of Proceedings (cont)                                         AR20100027060



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