IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20140016420 


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 an upgrade of his reentry (RE) code from RE-4 to 
RE-1.

2.  The applicant states he wishes to be a Soldier again and rejoin his comrades who were like family to him.  He was close to completing his contract when he was separated.  He hopes to be able to fulfill the promise he made when he signed his enlistment contract.

3.  The applicant provides no additional documentary 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 January 2005.  After completing initial training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade held was specialist/E-4.  During his term of active service he was deployed to Iraq from 14 December 2005 to 15 December 2006.  He was awarded or authorized:

* Army Commendation Medal (2nd Award)
* National Defense Service Medal
* Iraq Campaign Medal
* Global War on Terrorism Service Medal
* Overseas Service Ribbon
* Combat Infantryman Badge

3.  On 22 May 2006, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) while deployed in Iraq for one specification of failing to report to his appointed place of duty (failure to repair) and one specification of dereliction of duty.  One of the punishments included reduction to private/E-2.

4.  On 22 June 2007, the applicant's unit commander notified him of the initiation of separation action under the provisions of chapter 14, Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) (Commission of a serious offense - abuse of illegal drugs).  The applicant was advised of his rights and told he would be recommended for a general discharge under honorable conditions.  The commander based this action on:

* wrongful use of cocaine
* failure to repair on two separate occasions
* disobeying the lawful order of a noncommissioned officer on numerous occasions
* dereliction of duty

5.  On 25 June 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  That statement is not available for review.  His commander subsequently recommended separation from the service.

6.  On 27 June 2007, the separation authority approved the commander's recommendation and directed the issuance of a general discharge under honorable conditions.  



7.  On 11 July 2007, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served 
2 years, 5 months, and 15 days of net active creditable service with 3 days of lost time due to being in confinement.  Item 26 (Separation Code) shows the entry JKK and item 27 (RE Code) lists the code of RE-4.

8.  He applied to the Army Discharge Review Board requesting an upgrade of his discharge and RE code.  On 13 April 2009, he was notified by letter his requests had been denied.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes 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 

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that 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 the provisions of chapter 14, paragraph 14-12c(2) of Army Regulation 635-200.

11.  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 SPD code of JKK has a corresponding RE code of 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the RE code shown on his DD Form 214 be changed to a code of RE-1 so that he may be eligible to reenter the Army.  His current code of RE-4 gives him a nonwaivable disqualification for enlistment, whereas an RE-1 allows him to enlist without restriction.

2.  His records show, as a result of a positive urinalysis, he was found to have committed a serious offense by using illegal drugs.  The action taken by the applicant's leadership was appropriate given the facts and circumstances that led to his discharge action.  During the processing of his discharge action, all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The evidence of record further confirms his RE code was assigned based on his discharge under the provisions of chapter 14, paragraph 14-12c(2), Army Regulation 635-200.  The RE code associated with this type of discharge is 
RE-4.  Therefore, he received the appropriate RE code associated with his discharge.

4.  Based upon the foregoing and the fact he did not submit any evidence showing the RE code he was assigned was in error or due to an injustice, there is an insufficient basis upon which to grant 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)                                         AR20140016420



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ABCMR Record of Proceedings (cont)                                         AR20140016420



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