IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011032 


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 an upgrade of his reentry eligibility (RE) code from 4 to 1 in order to make him eligible for reentry into the military.

2.  He states there is no error in his record, but he would like to enlist in the Army National Guard and complete his civil obligation to serve his country as he set out to do on 1 December 1994.  He attests he is in good moral standing in his community and currently serves as a high school guidance counselor while he pursues a doctorate degree in Educational Leadership.

3.  He 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 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's record shows he enlisted in the Regular Army (RA) on 1 December 1994.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of his separation he held the rank grade of private (PVT)/E-1.

3.  On 1 May 1996, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of anabolic steroids and the wrongful distribution of anabolic steroids on or about a date in December 1995, and the wrongful possession of 10, 25 milligram steroid injections with the intent to distribute on or about a date in November 1995.

4.  He was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).  On 19 July 1996, he was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time showed:

* Item 24 (Character of Service), Under Honorable Conditions (General)
* Item 25 (Separation Authority ), Army Regulation 635-200 (Personnel Separations), paragraph 14-12c(2)
* Item 26 (Separation code) (SPD), JKK
* Item 27 (Reentry Code), 4
* Item 28 (Narrative Reason for Separation), Misconduct

3.  On 17 May 2006, the applicant submitted a request to the Army Discharge Review Board (ADRB) asking that his discharge be upgraded.  On 23 May 2007, the ADRB carefully examined the applicant's record of service during the period of enlistment under review and determined that his discharge was improper due to the fact his chain of command had included some privileged information along with the other evidence in his discharge packet.  Accordingly, the ADRB voted to grant full relief in the form of an upgrade of his characterization to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  The ADRB concluded that this corrective action did not entail a change to the RE code.  As a result, his original DD Form 214 was voided and he was issued an Honorable Discharge Certificate and a replacement DD Form 214 that was revised to show:

* Item 18 (Remarks), Characterization of service upgraded on 31 May 2007 following application dated 17 May 2006
* Item 24, Honorable
* Item 25, Army Regulation 635-200, paragraph 5-3
* Item 26, JFF
* Item 27, 4
* Item 28, Secretarial Authority

4.  Army Regulation 15-180 (Army Discharge Review Board), the regulation under which the ADRB operates, provides the objective of a discharge review is to examine the propriety and equity of the applicant's discharge and to effect changes, if necessary.  The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service.  The ADRB is empowered with the authority to modify characterizations of service, separation authorities, SPD codes, RE codes, and narrative reasons for separation.

5.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

6.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JKK was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).  It also stated that the SPD code of JFF was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-3, under Secretarial Authority.

7.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 4 was the proper code to assign to members separated with an SPD code of JKK.  It also stated that RE codes for members separated with an SPD code of JFF under Secretarial Authority would be determined by guidance provided in a Headquarters Department of the Army (HQDA) message or other directive authorizing separation under Secretarial Authority.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  

Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded in order to make him eligible for enlistment were carefully considered and found to lack merit.

2.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).  The evidence also shows the applicant was assigned the appropriate SPD code of JKK and RE code of 4 at the time of his discharge.

3.  The applicant petitioned the ADRB asking that his discharge be upgraded.  The ADRB determined his discharge was improper and voted to grant full relief in the form of an upgrade of his characterization to fully honorable and a change to the narrative reason for separation to Secretarial Authority, but elected not to change his RE code.

4.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that RE codes for members separated with an SPD code of JFF under Secretarial Authority would be determined by guidance provided in a HQDA message or other directive authorizing separation under Secretarial Authority.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an administrative error occurred during the processing of his discharge, it did not mitigate the fact he had committed a serious offense which warranted his separation.  Therefore, he is not entitled to an upgraded RE code.
6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

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)                                         AR20110011032





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ABCMR Record of Proceedings (cont)                                         AR20110011032



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