IN THE CASE OF:
BOARD DATE: 2 June 2011
DOCKET NUMBER: AR20100028932
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 item 27 (Reentry (RE) Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states the RE code on his DD Form 214 states offense but he only had a misconduct discharge. He was discharged for testing positive for marijuana and he should be allowed to serve upon the successful results of military drug testing.
3. The applicant provides no 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 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's records show he enlisted in the Regular Army (RA) on 29 October 1991 and he was assigned to the 69th Transportation Company, 28th Transportation Battalion, Hanau, Germany.
3. He was discharged on 22 October 1993 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12c, for misconduct-commission of a serious offense, specifically the abuse of illegal drugs, with a general, under honorable conditions discharge. He completed 1 year, 11 months, and 24 days of creditable active service.
4. Item 26 (Separation Code) of the DD Form 214 he was issued shows the entry "JKQ" and item 27 shows the entry "3."
5. 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 include minor disciplinary infractions, a pattern of misconduct, and abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.
6. Army Regulation 635-5-1 (Separation Program 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, in pertinent part, that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct.
7. By regulation an RE code of 3 is the proper code to assign members who were separated under the provisions of Army Regulation 635-200, by reason of misconduct with an SPD code of JKQ.
8. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve. Chapter 3, table 3-1, lists Army RE codes. 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. Recruiters are responsible for processing an applicant's request for waiver to the proper approval authority.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. It further shows that based on this authority and reason for separation he was appropriately assigned an SPD code of JKQ and the corresponding RE code of 3. Therefore, he received the appropriate RE code and is not entitled to the requested relief.
2. The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits. The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reentering military service. The applicant is advised that if he desires to reenter military service, 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 are responsible for processing RE code waivers.
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) AR20100028932
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ABCMR Record of Proceedings (cont) AR20100028932
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