BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016652 


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 his reentry (RE) code be changed.

2.  The applicant states he was young and did not realize the ramifications of his actions.  He is trying to turn his life around for his son and believes this is a chance. 

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.  The applicant enlisted in the Regular Army on 15 September 2005.

3.  A 1st Cavalry Division, Fort Hood, TX, military police blotter, dated 14 July 2007, shows that on 13 July 2007, a patrol and military working dog selected a vehicle belonging to the applicant for a deliberate vehicle inspection.  

   a.  The applicant and two other Soldiers, Private N and Private D, were in the vehicle.  The military working dog alerted on a brown leafy type vegetable substance suspected to be marijuana within the vehicle.  Both the applicant and other Soldiers were advised of their rights, which they waived.  Private D was released on the scene.  The applicant verbally admitted to having marijuana and cocaine on his person and Private N admitted to having marijuana on his person.  

	b.  The suspected marijuana and cocaine was tested.  The marijuana tested positive and the cocaine tested negative.  Both Soldiers were apprehended and transported to the police station where they declined to render written statements.  They were further processed and released to their units.

4.  On 14 July 2007, the applicant was ordered to submit to a urinalysis.

5.  On 23 July 2007, drug testing results showed the applicant tested positive for marijuana.

6.  On 2 August 2007, the applicant was counseled on:

* possessing marijuana and suspected cocaine 
* testing positive for marijuana
* enrollment in the Army Substance Abuse Program
* initiation of separation action for the commission of a serious offense under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)

7.  A memorandum signed by the Commanding Officer, 1-8 Cavalry, 2nd Brigade (Rear) (Provisional), 1st Cavalry Division, Fort Hood, TX, dated 2 August 2007, shows the applicant was advised of his rights and of testing positive for marijuana.  The applicant admitted to using the drug.  He stated that it was a poor decision, and he was fully aware that his drug use was wrong.

8.  On 15 August 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana on or about 16 June 2007 and on or about 16 July 2007.

9.  On 22 August 2007, a mental status evaluation was conducted on the applicant.  The evaluation revealed no evidence of altered thought processes or any other mental health condition that would explain the behavior that resulted in the initiation of administrative action.  He was cleared for any administrative action deemed appropriate by his command.

10.  On 10 September 2007, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for the commission of a serious offense.  His commander recommended a general discharge.

11.  On the same date, the applicant consulted with counsel and was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive, the possible effects of this discharge, and of the procedures/rights available to him.

12.  On 12 September 2007, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14 and directed the issuance of a General Discharge Certificate.

13.  On 25 September 2007, the applicant was discharged accordingly.  He completed 2 years and 11 days of creditable active service.  The DD Form 214 he was issued shows in:

* item 25 (Separation Authority) the entry – Army Regulation 635-200, paragraph 14-12c(2) 
* item 26 (Separation Code) the entry – JKK
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) the entry – Misconduct (Drug Abuse)

14.  Army Regulation 635-200, in effect at the time, 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, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

15.  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

16.  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 paragraph 14-12c(2) of Army Regulation 635-200 by reason of misconduct, abuse of illegal drugs.  

17.  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's RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200.  The appropriate RE code associated with this discharge is "4" which is correctly shown on his DD Form 214.

2.  The available evidence shows no error in the RE code entered on his DD Form 214.  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)                                         AR20130016652



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ABCMR Record of Proceedings (cont)                                         AR20130016652



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