RECORD OF PROCEEDINGS

	IN THE CASE OF:    .

	BOARD DATE:           29 January 2004                  
	DOCKET NUMBER:   AR2003089875

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Jeanie M. Biggs		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Ms. Karen Y. Fletcher		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests in effect, item 27, Reentry Eligibility (RE) Code, on his 
DD Form 214, Report of Transfer or Discharge be corrected to show the correct code so that he can reenter the Army.

2.  The applicant states “he did not do anything bad enough to be kicked out for life.  One man’s decision or thought shouldn’t keep me out.  I was told that after two years, I could reenlist, but that is a lie, I can’t reenlist at all.”

3.  The applicant did not provide any evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of error which occurred on 
12 March 1999.  The application submitted in this case is dated 11 April 2003.

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 
 
3.  On 12 November 1997 he enlisted in the Regular Army for 5 years.  He completed the training requirements and was awarded Military Occupational Specialty (MOS) 95B (Military Police).  He was advanced to pay grade E-2.

4.  On 24 July 1998, the applicant was the subject of a urinalysis which tested positive for marijuana. 

5.  On 6 August 1998, the applicant underwent a medical examination and was cleared for administrative separation.

6.  On 27 October 1998, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of reduction to the grade of E-1; forfeiture of $463.00 per month for two months; to perform extra duty for 45 days and 

45 days restriction (suspended to be automatically remitted if not vacated before 
25 April 1999).  He did not appeal the punishment.

7.  On 14 December 1998, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, Chapter 14 (Misconduct of a Serious Offense).  He signed a statement, in which he indicated that he had been counseled and advised of the basis for the recommended separation action.  He also elected not to submit a statement on his own behalf.

8.  On 5 January 1999, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-200, Chapter 14 and recommended separation with a general discharge.

9.  On 25 January 1999, the intermediate commander concurred with the recommendation for separation.

10.  On 27 January 1999, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, Chapter 14 and directed that he applicant be furnished a general discharge.

11.  On 12 March 1999, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, Chapter 14, for misconduct.  He was assigned a Separation Program Designator (SPD) of JKK.  He served 1 year, 4 months and 1 day of total active federal service.

12.  On 24 July 2002, the Army Discharge Review Board ( ADRB) granted partial relief in the form of upgrading the applicant’s general discharge to fully honorable.  However, the ADRB concluded that the applicant was properly assigned a  RE code of RE-4.

13.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army  and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. 

14.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-4 designates a disqualification which is not waivable.

15.  The United States Army Recruiting Command (USAREC) publishes a list of SPD’s which is cross referenced with RE codes.  At the time of the applicant’s separation, SPD JKK was listed as a nonwaiverable disqualification for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  Since the ADRB considered and denied the applicant’s case on 24 July 2002, he has filed his application within the Board’s statute of limitations.

2.  The USAREC cross reference list shows that the applicant’s SPD warranted the assignment of an RE-4 code.  As such, he was properly assigned an RE-4.

3.  While the applicant may not believe that the actions which led to his discharge warranted a permanent bar to military service, the Army had decided at the time of his separation that it did not want soldiers separated due to misconduct, commission of a serious offense, to be allowed to reenter the Army.  

4.  The use of illegal drugs is certainly a serious offense.  The seriousness of the offense is compounded by the fact that the applicant’s military occupational specialty was military police.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___wtm__  ___kyf___  ___rvo__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089875	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030729	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.