BOARD DATE:	    3 November 2011

		DOCKET NUMBER:  AR20110009845 


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 that his narrative reason for separation be changed to a more favorable reason.

2.  The applicant states that it has been 10 years since the offense and he is not even close to the same person.  He goes on to state that he desires to reenlist in the Army Reserve to finish what he started.

3.  The applicant provides no additional documents with his application.

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 6 September 1968 and he enlisted in the Regular Army on 21 August 1986 for a period of 4 years.  He served until he was honorably released from active duty (REFRAD) on 20 August 1990 due to the expiration of his term of service (ETS).  He had served 4 years of total active service.

3.  On 27 September 1990, he again enlisted in the Regular Army for a period of 4 years and assignment to Europe.  He was transferred to Hanau, Germany on 20 October 1990.

4.  On 4 September 1992, nonjudicial punishment was imposed against him for the wrongful use of marijuana.

5.  On 28 September 1992, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – abuse of illegal drugs.  He cited as the basis for his recommendation the applicant’s use of drugs and the fact that he had over 3 years of service.

6.  After consulting with defense counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive his rights in return for a characterization of no less than under honorable conditions (General Discharge).

7.  The appropriate authority accepted the conditional waiver and approved the recommendation for discharge on 7 October 1992.  He directed that the applicant be furnished a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions, on 21 October 1992, under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct – abuse of illegal drugs.  He was assigned a Reentry (RE) Code 
of 3 and he served 2 years and 25 days of his current enlistment.

9.  On 17 October 2002, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable.  On 20 February 2003, the ADRB determined that while his discharge was proper, it was inequitable based on one isolated incident.  Accordingly, the ADRB voted to upgrade his discharge and change the narrative reason for separation to “Misconduct” instead of “Misconduct Abuse of Illegal Drugs.”  Accordingly, he was issued a new DD Form 214 and an Honorable Discharge Certificate.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

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 USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

12.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance have with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Notwithstanding the subsequent actions of the ADRB, the narrative reason for separation is still appropriate for the circumstances of his case at the time.

3.  The applicant’s contentions have been noted.  However, there are procedures whereby the applicant can apply to a local recruiter for a waiver of his RE Code if he is in fact physically qualified and the needs of the Army at the time justify his return to service.

4.  Therefore, in the absence of evidence to show that an error or injustice exists in his case, there appears to be no basis to grant his 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)                                         AR20110009845



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ABCMR Record of Proceedings (cont)                                         AR20110009845



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