MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002077460

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

Mr. Carl W. S. Chun		Director
Mrs. Joyce A. Hall		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Arthur O’Martian		Member
Ms. Marla J. Troup		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the reentry (RE) code listed on his DD Form
214 (Certificate of Release or Discharge from Active Duty) be changed.

APPLICANT STATES: That he was discharged from the Army for smoking marijuana. He contends that it was his first and only offense. He also contends that he was not offered any help or any type of rehabilitation.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the Regular Army on 17 August 1998 for a period of four years. He successfully completed basic and advanced individual training and was assigned to a unit located at Fort Hood, TX, as a cannon fire direction
specialist.

Between 27 April 1999 and 20 May 1999 the applicant was counseled on three separate occasions for failure to maintain military appearance, failure to repair, for being disrespectful to a superior noncommissioned officer, and failure to report back to work.

On 27 July 1999, the applicant was counseled for suspected use of marijuana.
A probable cause for search was instituted for suspected use and for admitting to smoking marijuana in the barracks. He was restricted to the post until completion of investigation.

On 13 August 1999, the applicant was counseled after a positive urinalysis test and flag action was initiated the same day.

On 30 August 1999, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana. His imposed punishment was a reduction to pay grade E-2, a forfeiture of $463.00 pay per month for 2 months, and 45 days restriction and extra duty.

Between 27 September 1999 and 29 September 1999, the applicant was counseled on three separate occasions for failure to repair, for substandard duty performance, for disobeying a lawful order, and for missing formation.

On 13 October 1999, the applicant's unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, chapter
14-12c(2) for misconduct-drug abuse. The commander's recommendation was based on the applicant's use of marijuana and for disobeying lawful orders from a noncommissioned officer. The applicant was advised of his rights, consulted with legal counsel and informed of the impact of a less than fully honorable discharge.

On 15 October 1999, the applicant acknowledged the notification; he elected to make a statement in his own behalf. However, he declined to submit further information as he stated he would in the chapter 14 paperwork.

On 19 October 1999, the approving authority waived rehabilitation and approved the separation action and directed a general discharge. On 19 November 1999, the applicant was separated with a general discharge. He had 1 year, 3 months, and 3 days of creditable service. He was assigned a reentry code of 4.

Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and exertion or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge maybe granted.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes 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 shows that the separation program designator “JKK” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Misconduct-Drug Abuse” and that the authority for discharge under this separation program designator is “AR 635-200, para 14c(2)”. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper reentry code to assign to soldiers separated for this reason.

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 (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.

Table 3-6 of Army Regulation 601-210, in effect at the time, lists the Armed Forces RE Codes. In pertinent part, this table states that RE-4 applies to persons with nonwaivable disqualifications including adverse RE codes. Paragraph 3-6 states that RE codes are not upgraded unless they are administratively incorrect when originally issued.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant's DD Form 214 shows he was discharged with a separation code of "JKK" (Misconduct-Drug Abuse) and was assigned a RE code "4" in accordance with the governing regulation in effect at the time. Therefore, his DD Form 214 is correct as currently constituted and there is no basis to change his reentry code of RE-4.

2. The Board noted the applicant's contention that he did not receive rehabilitation or any other help. However, the Board noted that the applicant acknowledged separation under chapter 14 for commission of a serious offense. He consulted with counsel, he indicated that he would submit statements in his own behalf but he failed to do so. The Board also noted that the chain of command determined that further rehabilitation attempts would not be in the best interest of the Army.

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

4. 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.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___RVO_ ___AAO _ __MJT __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002077460
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/16
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.	100.0300
2.
3.
4.
5.
6.