IN THE CASE OF:	   

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120012945 


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, in effect, that his reentry eligibility (RE) code and narrative reason for separation be changed.

2.  The applicant states he started basic training in late November and after one month of training they were sent home for Christmas exodus.  While away he smoked marijuana and upon his return to basic training, he failed a drug test.  He does not have an excuse for smoking marijuana but he had just turned 18 years old and was a stupid kid.  He contends that he has regretted his choice for the past seven years and would love to return to the Army to serve his country.  He is requesting a change of his RE code so he may reenlist and do what he set out to do seven years ago.

3.  The applicant 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 enlisted in the Regular Army on 24 November 2004.

3.  On 9 February 2005, he was counseled by his company commander for violating Article 112A (wrongful use, possession, etc. of a controlled substance) of the Uniform Code of Military Justice.  The commander stated that on 
30 January 2005, the first sergeant received notification from the Army Drug and Alcohol Prevention and Control Office that his social security number matched the number of a urinalysis sample that tested positive for tetrahydrocannabinol (THC).

4.  On 22 March 2005, he was notified by his unit commander that separation action was being initiated against him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for commission of a serious offense.  The commander stated that the specific reason for the proposed separation action was that he tested positive for marijuana on a post-exodus urinalysis test.

5.  On 23 March 2005, the proper authority approved the separation action and on 1 April 2005, he was discharged accordingly.  His DD Form 214 shows in:

* block 26 (Separation Code) the entry "JKK"
* block 27 (Reentry Code) the entry "4"
* item 28 (Narrative Reason for Separation) the entry "Misconduct"

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

8.  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 Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army 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.  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.

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for change of his RE code and narrative reason for separation has been carefully considered.

2.  The evidence shows he was separated under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct, specifically, drug abuse.  Therefore, the narrative reason for separation shown on his DD Form 214 is correct.  

3.  He was assigned an SPD code of "JKK" in accordance with the governing regulation.  As such, the corresponding RE-4 code was correctly entered on his DD Form 214.

4.  His desire to reenter the military was noted; however, there are no provisions in current regulations authorizing a change of RE codes for this reason.  Therefore, 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)                                         AR20120012945



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ABCMR Record of Proceedings (cont)                                         AR20120012945



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