IN THE CASE OF:	  

		BOARD DATE:	  15 December 2012

		DOCKET NUMBER:  AR20110012252 


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 his reentry eligibility (RE) Code of “4” be changed so he can enlist in the Army.

2.  He states that he has learned from his mistakes and realizes that he really did like being a part of the Army and the military way of life.  He really would like the opportunity to enlist in the Army and serve his country proudly.  He recently visited a recruiter and was advised of what RE Code “4” means.  He did not know this at the time of his discharge.  He thought he would be able to rejoin in a few years if he kept clean and on the straight and narrow which he had been doing.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 6 October 2004, for 4 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-3 on 6 October 2005.

3.  On 21 July 2006, he received counseling pertaining to the results of a positive urinalysis.

4.  On 4 August 2006, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana between on or about 11 June and 11 July 2006.  He was reduced to pay grade E-1 on 4 August 2006.

5.  On 31 August 2006, the applicant’s company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 14-12c, for commission of a serious offense (wrongful use of marijuana) with a general discharge.  The applicant was also advised of his rights.

6.  On 9 September 2006, the applicant, after consulting with counsel, acknowledged receipt of the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c.  He also acknowledged that he might receive a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 20 September 2006, the applicant’s battalion commander recommended the applicant be retained and if separated he be issued an honorable discharge.

8.  On 29 September 2006, the appropriate separation authority suspended the applicant’s discharge.  

9.  On 10 January 2007, the appropriate separation authority vacated the suspension and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c).

10.  On 31 January 2007, the applicant was convicted by a summary court-martial of the wrongful use of marijuana between on or about 19 November and 18 December 2006.  He was sentenced to forfeit $867.00 and to 30 days confinement.
11.  He was discharged from active duty on 7 March 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse), with a general discharge under honorable conditions.  He was credited with completing 2 years, 4 months, and 8 days of net active service.  

12.  Item 26 (Separation Code) of his DD Form 214 shows “JKK” and Item 27 (Reentry Code) shows “4.”

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12c(2)(a) provides for the separation of Soldiers for the commission of a serious offense such as the abuse of illegal drugs.  A single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  This regulation states that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.

15.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification (locally-imposed bar to reenlistment).  Members separated with an RE code 4 are ineligible for enlistment.  RE-3 applies to persons separated with a waivable disqualification.  RE-1 means the Soldier is fully qualified for reenlistment.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD Codes)), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The SPD code “JKK” was appropriate for involuntary discharge for "Misconduct (Drug Abuse).  The SPD code “JKK” had a corresponding RE Code “4.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant accepted NJP for the wrongful use of marijuana and was convicted by a summary court-martial of the wrongful use of marijuana.  His company commander initiated action to separate him.  He was discharged on 7 March 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).  An RE code “4” was entered on his DD Form 214.

2.  The RE code is consistent with the basis for his separation action and in this case there is no basis to correct the existing code.  He has provided no evidence and the evidence of record fails to show his assigned RE code was in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

3.  The evidence of record also confirms his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATIONX

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)                                         AR20110012252





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ABCMR Record of Proceedings (cont)                                         AR20110012252



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