RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2008 DOCKET NUMBER: AR20080001257 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. Director Analyst The following members, a quorum, were present: Chairperson Member Member 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 that his reentry eligibility (RE) code of RE-4 be changed. 2. The applicant states, in effect, at the time of his discharge he was young and immature and he was not ready for the responsibility that the Army had to offer. He states his discharge was upgraded but his RE code was not changed. He states he would like to go back to the Army and retire. 3. The applicant provides no additional official documentation or evidence 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 military personnel record shows he enlisted, at the age of 21, in the Regular Army on 2 August 2000 for a period of 4 years. He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 92Y (unit supply specialist). He was promoted to specialist/pay grade E-4 on 1 March 2002. 3. On 12 June 2003, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of tetrahydrocannanibol, a Schedule I controlled substance. 4. On 6 August 2003, the applicant was evaluated by a captain, a psychologist, of the 1st Infantry Division Mental Health. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. 5. On 19 November 2003, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of his having committed a serious offense. The commander advised the applicant he was recommending that he be retained in service, but if his recommendation for retention was disapproved, that he was recommending that the characterization of his service be under honorable conditions. 6. The commander advised the applicant of his right to consult with consulting counsel, submit statements in his own behalf, obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his separation. 7. The applicant acknowledged he had been advised by his commanding officer of the basis for the contemplated action to involuntarily separate him. The applicant indicated he was not submitting statements in his own behalf and that he waived counsel. 8. The applicant also acknowledged that, as the result of issuance of an discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life. 9. The applicant's commander recommended him for retention under the provisions of Chapter 14, Army Regulation 635-200, commission of a serious offense. 10. On 1 December 2003, the applicant's intermediate commander recommended the applicant be separated by reason of commission of a serious offense and that the characterization of his service be deemed under honorable conditions. 11. On 3 December 2003, the appropriate authority approved the recommendation for discharge by reason of commission of a serious offense, waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under honorable conditions. 12. On 13 December 2003, the applicant was discharged under the provisions of paragraph 14-12c(2), Chapter 14 of Army Regulation 635-200. The applicant was assigned a separation program designator code (SPD) code of JKK, and assigned an RE code of RE-4. He had completed 3 years, 3 months, and 8 days active service that was characterized as under other than honorable conditions. 13. The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 19 August 2005, the ADRB reviewed the applicant's request and determined that the applicant's discharge was properly issued but inequitable as to the characterization. The ADRB granted a change of characterization to honorable. However, the reason for discharge remained the same. 14. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 14, established policy and prescribed procedures for separating members for misconduct. Specific categories included commission of a serious offense. Abuse of illegal drugs was defined as serious misconduct. This regulation provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. 15. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation showed that the SPD code “JKK” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “Misconduct." 16. The Separation Program Designator Code SPD/Reentry (RE) Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of JKK is RE-4. 17. 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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of Armed Forces RE codes. 18. Paragraph 3-22 (U.S. Army Reentry Eligibility (RE) Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification. 19. Paragraph 3-27 (Correction of Army RE codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his RE code should be changed so he can re-enter the Army. He further contends he was young and immature at the time. 2. The applicant’s age at time of enlistment was 21 years of age. However, many Soldiers were enlisted at a younger age and went on to complete their enlistments and receive honorable discharges. Therefore, the age of the applicant cannot be used as a reason to change a properly issued RE code. 3. The regulation defines abuse of illegal drugs as serious misconduct. Therefore, the applicant was properly discharged in accordance with regulations in effect at the time. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 4. Although the applicant was granted a change in the characterization of his discharge by the ADRB, the reason for separation remains appropriate considering all the facts of the case. Therefore, the SPN code of JKK assigned is correct. 5. According to the Separation Program Designator Code SPD/Reentry (RE) Code Cross-Reference Table the assignment of RE-4 for the applicant's SPN code of JKK is administratively correct. 6. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __RML __ __GJP__ __SWF__ 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. _____RML_____ CHAIRPERSON ABCMR Record of Proceedings (cont) AR20080001257 6 DEPARTMENT OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 1901 SOUTH BELL STREET 2ND FLOOR ARLINGTON, VA 22202-4508