BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120003775 


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 upgrade of his general discharge and a change to his reentry (RE) code that would enable him the option of reenlistment.

2.  He states he has completed rehabilitation to correct the error of his ways and he would like an audience with the Board to state his case and show the Board why he should be allowed to reenlist.

3.  He provides a Salvation Army Adult Rehabilitation Center letter to the Board.

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.  His military records show he enlisted in the Army National Guard on 4 November 1998. 
3.  His discharge packet is not contained in his records.  However, his National Guard Bureau Form 22 (NGB Report of Separation and Record of Service) shows on 30 October 2002 he was discharged from the Army National Guard under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26e(2), by reason of misconduct-drug positive, with a characterization of service of under honorable conditions.  His NGB Form 22 shows he was given an RE code of 3.  At the time of discharge he had completed a total of 3 years, 11 months, and 27 days of military service.

4. On 12 January 2005, the Army Discharge Review Board denied the applicant's request to upgrade his general discharge.

5.  NGR 600-200 governs procedures for the administrative separation of enlisted personnel of the Army National Guard.  Chapter 8 of NGR 600-200, in effect at the time, covered the reasons for discharge and separation of enlisted personnel from the State Army National Guard.  The regulation defines misconduct by reason of one or more of the following:  minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and conviction by civil authorities.

6.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

7.  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 (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 the Army National Guard.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  This regulation further states an RE code is not upgraded unless it was administratively incorrect when originally issued.

8.  RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

10.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.

2.  He was discharged under the provisions of NGR 600-200, paragraph 
8-26e(2).  In order to be discharged under this provision he would have tested positive for use of an illegal drug.

3.  While it is commendable that he completed a rehabilitation program it does not mitigate his misconduct which led to his discharge.  A general discharge would have been warranted based on his misconduct.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

5.  There is no evidence of error in the assignment of the RE code of 3.  As such, there is no basis for which to change the RE code.  The applicant was disqualified from reenlistment, but the disqualification is waivable.

6.  Furthermore, his stated desire to serve in the military again is not a basis for changing a properly assigned RE code. 

7.  Since enlistment criteria changes, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.

8.  In view of the above, there is no basis to upgrade his discharge to an honorable discharge or to change his RE code.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20120003775



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ABCMR Record of Proceedings (cont)                                         AR20120003775



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