BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016625 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ _____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016625 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150016625 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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his reentry eligibility (RE) code as RE-3 instead of RE-4. 2. The applicant states, in effect, he has an Army Discharge Review Board (ADRB) Notification Letter and an ADRB Case Report and Directive that states he was appropriately assigned an RE code of 3. 3. The applicant provides: * ADRB Notification Letter, dated 3 April 2011 * ADRB Case Report and Directive, dated 29 July 2011 * DD Form 214, dated 13 May 2010 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. On 18 June 2007, the applicant enlisted in the Regular Army for 3 years and 19 weeks. He completed training as a motor transport operator. 3. On 9 January 2008, the applicant was counseled for being absent without leave (AWOL) from 3 to 7 January 2008. He was advised that his chain of command had made every possible attempt to reach him through his contact numbers. A recommendation was being made that action be initiated against him for being AWOL and that he be punished in accordance with the Uniform Code of Military Justice. He was also advised if this conduct continued, action maybe initiated to separate him. 4. The applicant accepted nonjudicial punishment on 11 February 2008 for being AWOL from 3 to 7 January 2008 and for wrongfully using marijuana between 11 December 2007 and 10 January 2008. 5. On 8 January 2010, the applicant was counseled for failing a drug test taken on 29 October 2009. He was told that his test came back positive for tetrahydrocannabinol (THC). He was also told that this type of action would not be tolerated and he was informed of the results of receiving a less than honorable discharge. 6. On 29 March 2010, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12(c), for commission of a serious offense. His commander cited his positive tests for marijuana on 10 January 2008 and 29 October 2009, and his period of AWOL from 3 to 7 January 2008, as the bases for his recommendation. The applicant acknowledged receipt of the notification. 7. He consulted with counsel and he was advised of his rights. He elected not to submit a statement in his own behalf. 8. On 12 April 2010, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14-12(c)(2), for misconduct and directed the issuance of an under honorable conditions (general) discharge. Accordingly, on 19 May 2010, he was discharged. He completed 2 years, 10 months, and 28 days of net active service this period. 9. Item 26 (Separation Code) on his DD Form 214 shows he received a separation program designator (SPD) code of "JKK" for misconduct. Item 27 (Reentry Code) shows he received an RE code of "4." 10. On 29 July 2011, the ADRB denied the applicant's petition for an upgrade of his general discharge to an honorable discharge. 11. The applicant provides a copy of an ADRB Case Report and Directive, in which the analyst states that at the time of discharge the applicant was appropriately assigned a RE code of "3." REFERENCES: 1. 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. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. An RE code “3” applies to persons who have a waivable disqualification. An RE code "4" applies to persons who have a non-waivable disqualification. 2. Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons. 3. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers separated for cause. The SPD code of "JKK" has a corresponding RE code of "4." DISCUSSION: 1. The applicant's contentions have been noted. However, the ADRB analyst mistakenly stated that he was appropriately assigned a RE code of "3." 2. According to the SPD/RE Code Cross Reference Table the SPD code of "JKK" has a corresponding RE code of "4" and this code applies to persons who have a non-waivable disqualification. The RE code shown on his DD Form 214 is correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016625 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016625 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2