IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110003688 


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 removal of reentry eligibility (RE) code 4 from his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he only had one incident (marijuana) during 9 years of service.  He was not presented with counsel regarding the implications of the RE code and how it would affect his future endeavors.  He was presented with action to accept the court-martial or request discharge with no less than a general character of service.  He was presented with no other choices or factors as presented by the Army Discharge Review Board.  He was not given an option for rehabilitation and/or an opportunity to overcome his indiscretion/
offense.

3.  The applicant did not provide any 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 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.  Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 31 January 2002 and held military occupational specialty 68W (Health Care Specialist).  The highest rank/grade he attained was sergeant/E-5.

3.  He was awarded the National Defense Service Medal (2nd Award), Global War on Terrorism Service Medal, Army Service Ribbon, Joint Meritorious Unit Award, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 19 March 2004, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 21 April 2004, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 22 February 2004 and on or about 22 March 2004.

6.  On 29 April 2004, he participated in a unit urinalysis and his urine sample again tested positive for marijuana.

7.  On 18 May 2004, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana between on or about 29 March 2004 and on or about 29 April 2004.

8.  On 27 May 2004, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense.  Specifically, he cited the applicant's having twice wrongfully tested positive for marijuana.  He recommended a general discharge under honorable conditions.

9.  On 1 June 2004, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect, the possible effects of this discharge, and of the procedures and rights available to him.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a general discharge.  He elected not to submit a statement in his own behalf.

10.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

11.  On 2 June 2004, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – commission of a serious offense – and directed his service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 11 June 2004.

12.  His DD Form 214 confirms he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct – commission of a serious offense.  This form shows he completed 2 years, 4 months, and 11 days of creditable active service during the period under review.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – the entry "JKK"
* item 27 (Reentry Code) – the entry "4"

13.  On 6 May 2010, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Table 3-1 included a list of Regular Army RE codes.

* 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
* 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
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JKK" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – commission of a serious offense.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows that SPD code "JKK" has a corresponding RE code "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a former sergeant and noncommissioned officer, twice tested positive for marijuana.  Accordingly, his chain of command initiated separation action against him.  He consulted with legal counsel and he was advised of:

* the basis for the contemplated separation
* the type of discharge he could receive and its effects (which would have included its effects on enlistment or reenlistment)
* the possible effects of this discharge
* the procedures and rights available to him

2.  He was discharged on 11 June 2004 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense – illegal abuse of drugs – with a character of service of general under honorable conditions.

3.  His RE code was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct – abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  The only valid narrative reason for separation permitted under paragraph 14-12c is "misconduct" and the appropriate RE code associated with this type of discharge is RE-4 which is correctly shown on his DD Form 214. 
Therefore, he is not entitled to the requested relief.

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)                                         AR20110003688



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003688



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1