IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130012820 


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 correction to the narrative reason for his Reentry (RE) Code from an RE-4 to a more favorable code so he can reenter military service.  

2.  The applicant states:

* he has no error or injustice in his records; he believes the RE code listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is a burden
* he knows he made errors in the past; however, he is now a different person and he should not be judged on what he did in the past
* it has been 7 years since his discharge and after 7 years, many debts are normally forgiven

3.  The applicant provides:

* DD Form 214
* Certificate of appreciation
* Marriage Certificate
* Certificate of completion
* Driving History
* Driver's License
* State Weapons Carry License
* Résumé
* Letter from a State Police Department

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's records show he enlisted in the Regular Army on 2 January 2001 and he held military occupational specialty 92Y (Unit Supply Specialist).  He reenlisted on 24 June 2003 and on 14 September 2004.  He served in Kuwait/Iraq from 28 February 2003 to 26 November 2003 and in Afghanistan from 21 November 2001 to 12 March 2002.  

3.  He was awarded or authorized the Afghanistan Campaign Medal, Iraq Campaign Medal, Presidential Unit Citation, Global War on Terrorism Service Medal, National Defense Service Medal, Army Service Ribbon, two overseas service bars, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 29 May 2005, he was arrested and charged with operating a motor vehicle while under the influence of alcohol (DUI).  He pled guilty to the charge in civilian court and was sentenced to confinement, fine, processing costs, and ordered to attend an in-patient alcohol program.

5.  On 26 June 2005, he was arrested and charged with speeding, driving on a DUI suspended operator’s license, displaying and/or possessing a cancelled/fictitious operator’s license, and operating a motor vehicle under the influence of alcohol/drugs (3rd offense).  

6.  On 5 July 2005, he pled guilty to the DUI (3rd offense charge) and was sentenced to confinement for 12 months (10 months suspended), ordered to enter treatment, placed on 2 years unsupervised state probation, and ordered to enter and complete an inpatient treatment program.

7.  On 15 September 2005, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct, commission of a serious offense.

8.  On 15 September 2005, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.

9.  On 16 September 2005, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200.  He further recommended a general discharge under honorable conditions.

10.  On 20 September 2005, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (drug abuse) and directed the applicant be furnished a general discharge under honorable conditions.  

11.  The applicant was accordingly discharged on 28 September 2005.  His DD Form 214 confirms he was discharged with a general discharge under honorable conditions.  He completed a total of 4 years, 6 months, and 27 days of creditable active military service and he had 60 days of lost time.   Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – JKK
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse)

12.  On 26 January 2007, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of the characterization of service. 

13.  On 4 December 2007, the ABCMR denied his petition for a change to the narrative reason for separation. 

14.  He provides his résumé, driving record, marriage certificate, driver's license, and a weapon's license.   He also provides a certificate of appreciation for outstanding contributions to the 2010 Internal Revenue Service season; a certificate showing completion of an education/information program on misuse of alcohol and other drugs; and a letter from a state police department advising him of his status in the hiring process. 

15.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army RE codes.

* 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
* 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 unless a waiver is granted
* RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JKK" is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct, abuse of illegal drugs.  

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense.  Accordingly, his chain of command initiated separation action against him.  He was advised of and acknowledged his rights.  The separation authority ultimately approved the separation action in accordance with chapter 14 of Army Regulation 635-200 for misconduct (drug abuse). 

2.  The applicant's RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct, drug abuse.  Absent the drug abuse, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - drug abuse" and the appropriate RE code associated with this discharge is an RE-4 which is correctly shown on his DD Form 214.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant abused drugs.  His chain of command initiated separation action against him.  The applicant has not submitted any substantiating evidence to show his RE code is in error or inequitable.  Therefore, he is not entitled to the 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)                                         AR20130012820





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ABCMR Record of Proceedings (cont)                                         AR20130012820



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