IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008588 


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 (RE) Code 4 be changed so that he may reenlist in the Army.

2.  The applicant states he was enrolled in the Army Substance Abuse Program but did not get to complete the program.  He believes that after 2 years and two different military occupational specialties (MOS) he could still be a good Soldier.  He further states that he now has a family, a new house, and a job that requires random drug testing.  He made a mistake by surrounding himself with the wrong people at Fort Hood, TX.  He regrets that mistake everyday.  He would like a chance to reenlist and serve his country to the best of his ability.

3.  The applicant provides no additional documentation.

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.  On 28 February 2007, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  DA Form 4856 (Developmental Counseling Form) shows:

	a.  On 6 August 2007, the applicant was counseled because he had tested positive on 17 July 2007 for use of illegal drugs.  He was informed that the Army had a zero tolerance policy toward drug use and that he was being recommended for action under the Uniform Code of Military Justice.  The applicant agreed with the counseling.

	b.  On 17 August 2007, the applicant was counseled for failing to go to his appointed place of duty.  He agreed with the counseling.

4.  On 22 August 2007, the applicant accepted nonjudicial punishment (NJP) for the wrongful use of cocaine on or about 17 July 2007.

5.  On 14 September 2007, a mental status evaluation found the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible.  He was capable of participating in the separation processing.

6.  On 19 September 2007, the applicant was notified of the commander's intention to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense.  The reason for this action was his illegal use of cocaine.

7.  On 19 September 2007, the applicant acknowledged the commander's notification.

8.  On 19 September 2007, the commander recommended the applicant be separated due to the misconduct discussed in the preceding paragraphs.  He further recommended that he receive a general, under honorable conditions characterization of service.

9.  On 20 September 2007, the applicant consulted with counsel and elected not to submit a statement on his own behalf.  He waived consulting counsel.

10.  On 24 September 2007, the appropriate separation authority approved the recommendation and directed that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense.

11.  On 28 September 2007, the applicant was discharged under honorable conditions.  He had completed 7 months and 1 day of creditable active duty service.  He was given a Separation Program Designator (SPD) Code of JKK and an RE Code of 4.

12.  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 misconduct for drug abuse.

13.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  

14.  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.  The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation  635-200, chapter 14, for drug abuse.  Additionally, the SPD/RE Code Cross Reference Table establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code 4 should be changed so that he may reenlist in the Army.

2.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.



3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130008588





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ABCMR Record of Proceedings (cont)                                         AR20130008588



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