MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003088180

         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
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		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: In effect, that his reentry (RE) code of RE-4 be changed to a more favorable RE code that will allow his enlistment.

APPLICANT STATES: In effect, that he is physically and mentally fit to perform the duties required of a member of the United States Armed Forces, and does not understand why he was assigned an RE-4 when he was discharged under honorable conditions.

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

On 2 November 2000, the applicant entered the Army for a period of 3 years. He successfully completed training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3). It also shows that during his active duty tenure he earned the National Defense Service Medal and the Army Service Ribbon. There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record.

The applicant’s record does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). He accepted NJP on 20 March 1987, for being absent without leave (AWOL) from 17 December 2001 to
28 December 2001, disobeying the lawful order of a noncommissioned officer, and dereliction of duty. The record also shows that he was formally counseled by members of his chain of command for the following infractions: failure to show for an accountability formation; being dishonest, refusing to do corrective training; and for missing mandatory formations and physical training.

On 25 August 2002, the applicant was notified of his unit commander’s intent
to initiate action to separate him under the following provisions of
paragraph 14-12c, Army Regulation 635-200, for the commission of a serious offense. The unit commander stated that the basis for the contemplated separation action was that the applicant tested positive for marijuana on
31 January 2002.

On 25 August 2002, the applicant acknowledged receipt of the separation action notification. He consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of waiving those rights. Subsequent to this counseling, he completed his election of rights by request legal counsel and he elected not to submit a statement in his own behalf.

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On 28 August 2002, the separation authority approved the separation action and directed that the applicant be discharged for commission of a serious offense under the provisions of paragraph 14-12c of Army Regulation 635-200. He also directed that the applicant receive a GD. On 24 September 2002, the applicant was discharged accordingly. At the time of his separation, he had completed a total of 1 year, 9 months, and 13 days of creditable active military service.

The DD Form 214 issued to the applicant on the date of his separation confirms that the authority for his discharge was Army Regulation 635-200,
paragraph 14-12c (2), and that he reason for his discharge was misconduct. This document also confirms that he was assigned a Separation Program Designator (SPD) Code of JKK and an RE code of RE-4.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. An honorable or general, under honorable conditions discharge may be awarded, but a discharge under other than honorable conditions is normally considered appropriate.

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, including RA RE codes. RE-1 applies to persons completing their terms of service who are considered fully qualified to reenter the US Army and RE-4 applies to persons not qualified for continued Army service by virtue of being separated from service with a non-waivable disqualification

Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of JKK is the appropriate code to assign to soldiers separating under the provisions of paragraph 14-12c (2), Army Regulation 635-200, by reason of misconduct. Further, the SPD and RE code cross reference table establishes the RE code of RE-4 as the proper reentry code to assign to soldiers separated under this authority and for this reason.

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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 Board notes the applicant’s contentions that his RE code of 4 should be changed to allow him to reenlist in the Army. However, the Board finds this factor is not sufficiently mitigating to warrant the requested relief.

2. The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. The Board is also satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3. The Board notes that the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct for the commission of serious offense that was drug related. As a result, he was properly assigned an RE code of RE-4 in accordance with the applicable regulatory guidance.

4. In view of the circumstances in this case, the Board finds the RE-4 code was appropriately assigned based on the authority and reason for the applicant’s discharge, and the basis for this assignment has not changed. The applicant has failed to show any error related to the RE code assignment. Therefore, the Board concludes that there is an insufficient evidentiary basis for changing it at this time.

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

___MVT__ ___FE__ ___JM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088180
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 4	100.0300
2.
3.
4.
5.
6.