IN THE CASE OF:	  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130004990 


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 that his reentry eligibility (RE) code "4" be changed to one which will allow him to reenlist.

2.  The applicant states at the time he received his RE code 4 his discharge was less than honorable.  He states his discharge is now honorable and he would like to reenlist as he now knows he can be an asset to the Army.

3.  The applicant 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.  He enlisted in the Regular Army on 7 May 2002.  He completed training as a petroleum supply specialist.

3.  The applicant was counseled on 23 February 2004 for wrongful use of a controlled substance.  The DA Form 4856 (Developmental Counseling Form) shows he failed a random drug urinalysis for marijuana on 8 January 2004.

4.  On 8 March 2004, the applicant accepted nonjudicial punishment for wrongful use of marijuana between 8 December 2003 and 8 January 2004.  His records show he tested positive for marijuana use on three urinalyses.

5.  On 9 March 2004, he was counseled and notified that action to separate him from the Army was being initiated in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12c.

6.  On 19 April 2004, the applicant was notified that charges were pending against him for wrongful use of marijuana.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

7.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

8.  The appropriate authority approved his request for discharge and directed the issuance of a discharge under other than honorable conditions.  On 18 May 2004, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 shows he completed 2 years and 12 days of net active service this 

period.  He received an under other than honorable conditions character of service.  He received a KFS separation program designator (SPD) code and an RE code 4.

9.  On 5 December 2012, the Army Discharge Review Board (ADRB) upgraded the applicant's character of service to honorable.  However, it found that the reason for his discharge was proper and equitable based on his record of service.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 4 applies to persons who have a non-waivable disqualification.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD Codes)) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

12.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause.  The SPD code KFS corresponds to RE code 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contentions have been noted.  However, there is no error or injustice in his assigned RE code.

2.  His records show he was discharged for the good of the service in lieu of trial by court-martial.  He was assigned an RE code 4 and an SPD code of KFS based on his reason for discharge.

3.  The ADRB subsequent upgrade of his character of service to honorable does not justify changing the reason for discharge which is fully supported by his record service.

4.  The applicant tested positive for use of marijuana on three occasions.  He submitted a request for discharge and as a result he received an RE code in accordance with the applicable regulation.  His desire to reenlist is not a basis for changing his RE code.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20130004990





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ABCMR Record of Proceedings (cont)                                         AR20130004990



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