IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140004599 


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 reconsideration of his previous request for an upgrade of his general discharge to an honorable discharge.  He also requests a change of his reentry eligibility (RE) code and accountability for his dates of service in the Delayed Entry Program (DEP).

2.  The applicant states, in effect, he believes there is an error because his DEP service is not accounted for; he believes it should be added to his dates of service.  He states that his discharge should be automatically upgraded so that he may apply for and make use of his eligible benefits without any problems.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Page 53 of Army Regulation 635-200 (Enlisted Personnel Separations)
* That portion of his separation packet acknowledgement he was ineligible to apply for enlistment in the Army for 2 years after discharge

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.  As part of this new request, the applicant has requested reconsideration of his previous request for an upgrade of his general discharge to an honorable discharge.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and it has not previously been reconsidered.  The applicant's request for reconsideration was not received within 1 year of the ABCMR's original decision (12 February 2008).  As a result, his request for reconsideration does not meet the criteria and no further reference will be made to this portion of his request in this ABCMR Record of Proceedings.

3.  The applicant enlisted in the U.S. Army Reserve under the DEP on 
30 October 1987 and remained in a DEP status through 19 January 1988.  He enlisted in the Regular Army on 20 January 1988.  He completed training as a combat engineer.

4.  On 10 May 1989, the applicant accepted nonjudicial punishment (NJP) for use of marijuana in the hashish form on or about 18 February 1989.

5.  On 12 October 1989, he accepted NJP for use of marijuana between 1 July and 1 August 1989 and between 30 July and 30 August 1989.

6.  On 2 November 1989, the applicant was notified that he was being recommended for discharge for misconduct – abuse of illegal drugs.  The commander cited continued use of marijuana as the basis for his proposed action.

7.  The applicant acknowledged receipt of the notification.  After consulting with counsel, he elected to submit a statement in his own behalf.  He stated:

* He failed to comply with the Army's rules and regulations concerning the drug and alcohol program
* He had been in the Army for a period of 23 months and he had achieved the basic soldiering skills
* He was a graduate of the U.S. Army Airborne Infantry School
* He understood he was being separated from the armed forces
* In 6 months he wished to let the Army Discharge Review Board or the ABCMR review his status and consider his discharge as being honorable

8.  The appropriate authority approved the recommendation for discharge on 13 November 1989 and directed the issuance of a general discharge.  On 30 November 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12b, due to misconduct – pattern of misconduct. He completed 1 year, 10 months, and 11 days of net active service this period and he received a general discharge.

9.  The applicant’s DD Form 214 shows he received a “JKM” (misconduct) Separation Program Designator (SPD) with RE codes 3 and 3C.  The entry "Item 12I: DELAYED ENTRY PROGRAM (DEP) 871030 – 880119" is shown in item 18 (Remarks) on his DD Form 214.

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-3 code applies to persons who have a waivable disqualification.  An RE-3C code applies to persons who have grade and service criteria in Army Regulation 601-210, paragraph 3-10.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory, statutory, or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code of "JKM" is the appropriate code to assign Soldiers separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct.

12.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for RA Soldiers and Reserve Component Soldiers separated for cause.  The SPD code "JKM" has a corresponding RE-3 code.

13.  Army Regulation 635-5 (Separation Documents), then in effect, was the authority for the preparation of the DD Form 214.  It stated in item 12e (Total Prior Inactive Service) enter from previously issued DD Forms 214 and/or Enlisted Record Briefs the total amount of prior inactive service, less lost time, if any.  DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block.  However, it is creditable service for completing the statutory military service obligation and will be entered in Item 18.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  

2.  He was discharged due to a pattern of misconduct and he was properly assigned RE codes 3 and 3C.  His separation code of "JKM" is based on his reason for discharge.

3.  Although the applicant desires to receive benefits without problems, it is insufficient justification for granting the relief requested.

4.  The applicant is advised that RE codes are not waived for the purpose of making an individual eligible for benefits.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  

5.  With regard to the applicant's request for accountability of his dates of DEP service, his DEP service was from 30 October 1987 through 19 January 1988, which was after 1 January 1985; therefore, it is not creditable service for pay purposes.  It was properly entered in item 18 of his DD Form 214 in accordance with the applicable regulation.

6.  The applicant has not shown error or injustice in the actions taken by the Army.  In view of the foregoing, the applicant's requests 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)                                         AR20140004599



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ABCMR Record of Proceedings (cont)                                         AR20140004599



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