IN THE CASE OF:	  

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120009105 


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 change of his reentry eligibility (RE) code from RE-3 to a more favorable code.

2.  He states he completed his term of 3 years.  He feels his RE code should reflect this completion of service and not be based on an incident that occurred several months prior to his discharge.

3.  He provides no additional documents.

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 enlisted in the Regular Army (RA) on 16 July 1998 for a period of 3 years.  On 9 April 2000, he extended his enlistment for 6 months.
3.  His service record shows he tested positive for marijuana on 5 July 2001.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 22 July 2001 for this offense.

4.  On 30 August 2001, his company commander notified him of his intent to recommend his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  He was advised of his rights.

5.  On 30 August 2001, he acknowledged notification of the separation action, consulted with legal counsel, and he elected not to submit a statement in his own behalf.

6.  On 11 September 2001, the separation authority waived rehabilitation requirements and directed the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense (abuse of illegal drugs) with a general discharge.

7.  On 5 October 2001, he was discharged accordingly with a general discharge.  He completed 3 years, 2 months, and 20 days of creditable active service.  The DD Form 214 he was issued shows he was assigned a separation program designator (SPD) code of "JKK" and an RE code of RE-3.  It further shows in item 18 (Remarks) the entry "Member has completed first full term of service."

8.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

9.  Army Regulation 635-5-1 (SPD Codes) provides 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 states that the SPD code of JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).  The SPD/RE Code Cross Reference Table, in effect at the time, stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKK.  However, the cross reference table currently in effect stipulates that an RE-4 will be assigned to members separated with an SPD code of JKK.

10.  Army Regulation 635-200 further states 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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation
635-200, chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  However, on
28 February 1995 Army Regulation 635-200 was revised effecting the discontinued use of RE-2.

	c.  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 for enlistment unless a waiver is granted.

	d.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he completed his term of service and his RE code should reflect this completion instead of being based on an incident that occurred several months prior to his discharge are acknowledged.

2.  His service record shows he tested positive for marijuana and received an Article 15 for this offense during his tenure on active duty.

3.  He was discharged on 5 October 2001 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct – commission of a serious offense (abuse of illegal drugs).  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

4.  His DD Form 214 shows he was separated with a separation code of "JKK" and he was assigned an RE code of RE-3 in accordance with the governing regulation in effect at the time.

5.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on misconduct – commission of a serious offense (abuse of illegal drugs).

6.  Additionally, his DD Form 214 reflects in the Remarks section that he completed his first full term of service.

7.  In view of the foregoing, and there is no basis for granting the applicant's 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 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)                                         AR20120009105



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009105



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1