IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150011698 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 IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150011698 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. IN THE CASE OF: BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150011698 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, correction of item 27 (Reentry (RE) Code) on her DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states the RE-4 code listed on her DD Form 214 makes her ineligible to receive her unemployment benefits. 3. The applicant provides a copy of her DD Form 214 and a document titled “Benefits at Separation.” 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 enlisted in the Regular Army on 29 July 2013. Upon completion of initial entry training, she was awarded military occupational specialty 92Y (Unit Supply Specialist). 3. On 16 July 2014, an Alcohol and Drug Control Officer informed the applicant’s commander of the applicant’s positive test for marijuana and identified her as a drug abuser through biochemical testing. The results report shows she tested positive for tetrahydrocannabinol (THC – i.e., marijuana) on 15 July 2014. 4. On 3 October 2014, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana, a schedule I control substance on or about 16 June 2014 or 17 July 2014. One of the punishments included reduction from private/E-2 to private/E-1. 5. On 20 November 2014, the applicant's unit commander notified her of the initiation of separation action under the provisions of chapter 14, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) (commission of a serious offense - abuse of illegal drugs). The applicant was advised of her rights and told she would be recommended for a general discharge under honorable conditions. The commander based this action on: * her wrongful use of marijuana * her unlawful striking of another Soldier while in uniform on 24 February 2014 * her arrest by the El Paso Police Department for theft at Walmart on 31 May 2014 * her failure to repair on diverse occasions * her several documented instances of misconduct 6. On 21 November 2014, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects. The applicant completed her election of rights statement indicating her options to: * waive consideration of her case by an administrative separation board contingent upon receiving a GD * request personal appearance before an administrative separation board if the separation authority refused to accept her conditional waiver of a hearing before an administrative separation board * not submit a statement in her own behalf * request consulting counsel and representation by military counsel and/or civilian counsel at her own expense if the separation authority refused to accept her conditional waiver of a hearing before an administrative separation board 7. On 27 January 2015, the separation authority referred the applicant’s separation action to an administrative separation board. On 19 February 2015, the administrative separation board substantiated the basis of the separation action and recommended the applicant’s separation from the Army with a general discharge. 8. On 16 March 2015, the separation authority approved the findings and recommendation of the administrative separation board. He likewise directed the applicant’s issuance of a general discharge under honorable conditions. 9. On 25 March 2015, the Army discharged the applicant accordingly under the provisions of paragraph 14-12c(2) by reason of “Misconduct (Drug Abuse).” Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she served 1 year, 7 months, and 27 days of net active service this period. Item 26 (Separation Code) shows the entry "JKK" and item 27 shows "4." REFERENCES: 1. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 includes a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers separated from their last period of service with a non-waivable disqualification 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of JKK is the correct code for Soldiers separating under the provisions of chapter 14, paragraph 14-12c(2) of Army Regulation 635-200. 3. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. SPD code JKK has a corresponding RE code of 4. DISCUSSION: 1. The applicant requests the RE code shown on her DD Form 214 be changed to allow her receipt of unemployment benefits. However, unemployment benefits or pay resulting from military service or otherwise are not within the purview of this Board. 2. The applicant’s records show, as a result of a positive urinalysis, she was found to have committed a serious offense by using illegal drugs. The action taken by the applicant's leadership was appropriate given the facts and circumstances that led to her discharge action. During the processing of her discharge action, all requirements of law and regulation were met and her rights were fully protected throughout the separation process. 3. The evidence of record further confirms her RE code was assigned based on her discharge under the provisions of chapter 14, paragraph 14-12c(2), Army Regulation 635-200. The RE code associated with this type of discharge is RE-4. There is no evidence of error in the assigned RE code. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011698 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011698 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2