IN THE CASE OF:	  

		BOARD DATE:	       27 MAY 2009

		DOCKET NUMBER:  AR20090003116 


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 in effect, a change to the reentry (RE) code listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 March 2004. 

2.  The applicant states, in effect, that this was his first offense and that he had just returned from Iraq and was not in the right state of mind.  He further states that he believes his RE code should have been RE-3 instead of RE-4. 

3.  The applicant provides no additional documentation in support of his application.

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 (RA) and entered active duty on 26 February 2002.  He was trained in, awarded and served in military occupational specialty (MOS) 31R (Multi-Channel System Operator).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  

3.  The applicant's record shows that during his tenure on active duty, he earned the National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant’s record is void of a separation packet outlining the facts and circumstances surrounding his separation processing.  However, the record does include a duly constituted DD Form 214 that shows he was separated under the provisions of paragraph 14-12c(2), Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of misconduct.  Item 24 (Character of Service) contains the entry "Under Honorable Conditions (General)" and based on the authority and reason for his discharge, he was assigned the Separation Program Designator (SPD) code of JKK in Item 26 (Separation Code) and the corresponding RE code 4 in Item 27 (Reentry Code).

5.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 14-12c pertains to a general commission of a serious offense.  Paragraph 14-12c(2) pertains specifically to a commission of a serious offense that is drug-related.  A discharge under other than honorable conditions is 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.  

6.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility criteria 

for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to members permanently disqualified from further service.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. 

7.  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.  It states, in pertinent part, that the SPD code of JKK is the appropriate code to assign to Soldiers separated under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct (commission of a serious offense – drug-related).  The SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with the SPD of JKK.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code he received should be changed because it was his first offense and he was not in the right frame of mind because of his recent return from Iraq.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  Although the applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing, the record does include a properly constituted separation document that confirms the authority and reason for the applicant’s discharge.  In the absence of evidence to the contrary, it is presumed that his separation processing was accomplished in accordance with the applicable regulation.  

3.  By regulation, the RE code 4 assigned the applicant was the proper code to assign members separating under the provisions of chapter 14-12c(2), Army Regulation 635-200, for misconduct that was based on the commission of a drug- related serious offense.  As a result, the RE-4 code assigned was and still is appropriate and valid based on the authority and reason for his separation.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.


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.



      _________XXX______________
               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)                                         AR20090003116



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ABCMR Record of Proceedings (cont)                                         AR20090003116



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