RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            JANUARY 29, 2004                  
	DOCKET NUMBER:   AR2003090810

	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	
	Mr. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Walter T. Morrison		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, that his reentry eligibility (RE) code 4 be changed.

2.  The applicant states, in effect, that the reentry code was unjust due to his past performance in the Army.  He adds that he has paid for what he did in the service.  He is not bothered by the discharge he received but to be coded and labeled is unjust.  He wanted to, and still wants to serve his country.  Being subjected to this makes him feel that he is not American, and he is, from the top of his head, to the bottom of his feet.

3.  The applicant provides a copy of his official Army photograph; a self-authored letter to members of the Board, which gives a brief summary of his service and outlines his goal of returning to active duty; five character/reference letters from a variety of people who are acquainted with him; and a number of other documents related to his service in the Army.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 11 December 1998.  The application submitted in this case is dated 
30 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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the US Army Reserve for 6 years on 18 December 1982.  On 25 February 1983, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  He successfully completed basic combat and advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty 13B, Cannon Crewman.

4.  The applicant continued his Army service through several enlistments and attained the rank and pay grade, Staff Sergeant, E-6, on 1 March 1993.

5.  On 13 July 1998, the applicant provided a urine specimen in his unit.  The specimen tested positive for THC (tetrahydrocannabinol). 

6.  On 1 September 1998, the applicant received non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for the use of a controlled substance, marijuana, between the dates of 23 June and 23 July 1998. The imposed punishment was forfeiture of $889.00 pay, per month, for 2 months, extra duty and restriction to the limits of dining, medical, place of worship, company and living facilities for 45 days.  The applicant did not appeal the punishment imposed.

7.  On 13 October 1998, the applicant underwent a mental status evaluation.  The applicant was cleared for any administrative action deemed appropriate by command.

8.  On 10 November 1998, applicant's unit commander notified him that he was initiating action to separate him from the Army for the commission of a serious offense, the wrongful use of marijuana.

9.  On 16 November 1998, the applicant sought counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a general discharge.  The applicant submitted a statement in his own behalf; however, that statement is not in his service personnel record.  

10.  On 24 November 1998, the unit commander made a recommendation that the applicant be separated from the Army under the provisions of Army Regulation (AR) 635-200, paragraph 14-12c, for commission of a serious offense, the wrongful use of marijuana.  The unit commander recommended that the applicant receive a general discharge.

11.  On 25 November 1998, the approval authority, a colonel, approved the separation action and additionally approved the issuance of a general discharge.

12.  On 11 December 1998, the applicant was discharged, under the provision of AR 635-200, paragraph 14-12c(2), for misconduct, with an Under Honorable Conditions (General) Discharge.  He had 15 years, 9 months and 17 days of creditable service and no lost time.  The highest pay grade he held was E-6.  He was assigned a code of RE-4 and a separation code of "JKK."

13.  AR 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, conviction by civil authorities, desertion or absence without leave.  This chapter also specifies that action will be taken to separate a member for misconduct if the soldier is serving in pay grade E-5 through E-9 upon discovery of a drug offense.

14.  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.  AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  An RE-4 code applies to persons separated from their last period of service with a non-waivable disqualification. This includes anyone with a Department of the Army or locally imposed bar to reenlistment in effect at the time of separation.

15.  AR 635-5-1 (SPD (Separation Program Designator) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation, in effect at the time, shows that the SPD code “JKK” as shown on the applicant’s DD Form 214 specifies the narrative reason for separation as involuntary release or transfer for “misconduct” and that the authority for separation under this separation program designator is “AR 635-200, Chapter 14-12c(2)”.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5 (Separation Documents) establishes RE code 4 as the proper reentry code to assign to soldiers separated for this reason.

16.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged for the good of the service in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural error, which would tend to jeopardize his rights.

2.  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 this requirement.

3.  The applicant who was then serving on active duty in the rank and pay grade, Staff Sergeant, E-6, tested positive for THC in a routine, unit-conducted, urine analysis.  The unit commander recommended his separation from the Army in compliance with existing regulation.  The type of discharge directed and the reasons therefore were appropriate considering the facts of the case.

4.  The applicant's RE Code of "4" is consistent with the basis for his separation.

5.  While the applicant may feel that he is being labeled unjustly, it was he who wrongfully used marijuana and there is no justifiable reason to remove or change the RE code that was entered on his DD Form 214.

6.  In view of the circumstances in this case, the assigned RE eligibility code was and still is appropriate.  

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 December 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 December 2001.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

wtm_____  kyf_____  rvo_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of 

limitations for timely filing or for correction of the records of the individual concerned.

		____Raymond V. O’Connor____
		        CHAIRPERSON

INDEX

CASE ID	AR2003090810	
SUFFIX		
RECON		
DATE BOARDED	20040129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  4	100.0300	
2.		
3.		
4.		
5.		
6.