RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060011602 


	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.  


Mr. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst


The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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, in effect, that his reentry (RE) Code be change from "RE 4" to "RE 3" so he can reenlist in the military to complete an obligation he made when he first enlisted.

2.  The applicant states, in effect, that while he was assigned to the 82nd Airborne he made a stupid mistake while on leave at home and was involuntarily discharged for using marijuana.  He was a young PFC (private first class) at the time.  He never realized how much he enjoyed the military until he was told he was no longer part of it.  While he was in the Army, he had the privilege of serving his country in Iraq from 6 December 2004 to 26 March 2005. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his DA Form 2627 (Record of Proceeding Under Article 15, UCMJ (Uniform Code of Military Justice), in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 15 January 2004, for 4 years, with an established expiration of term of service (ETS) of 14 January 2008.  He was trained in military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was promoted to PFC/E-3 on an unknown date.

2.  On 2 May 2005, the applicant tested positive for marijuana.

3.  On 26 May 2005, the applicant was punished under Article 15, UCMJ, for wrongful use of marijuana, a controlled substance, on or about 3 April 2005 and 2 May 2005.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and 45 days extra duty and restriction.

4.  On 3 August 2005, the applicant's commander notified him he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense.  He based his recommendation on his wrongful use of marijuana. 

5.  The applicant acknowledged the notification on the same date.  He consulted with counsel and waived his rights.


6.  On that same day, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious offence, prior to his ETS date.  

7.  The separation authority approved the recommendation for the applicant's discharge on 19 August 2005 and directed that he be issued a general discharge.  

8.  The applicant was discharged on 30 September 2005, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-abuse of illegal drugs.  He had completed 1 year, 8 months, and 16 days of creditable service.

9.  Item 27 (Reenlistment Code) of the applicant’s DD Form 214 shows the entry "RE 4," item 26 (Separation Code) shows the entry, "JKK," and the narrative reason for separation entered on his discharge certificate was misconduct, abuse of illegal drugs.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.

11.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs

12.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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. This chapter includes a list of Armed Forces reentry codes, including RA RE codes.

13.  RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct.
14.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial
punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapter 9, 10, 13, 14, and 16 of Army Regulation 635-200.

15.  Army Regulation 635-5-1, in effect at that time, 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 shows that the separation program designator (SPD) "JKK", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is
"misconduct, commission of a serious offense, abuse of illegal drugs" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14, paragraph 14-12c(2)."  

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-commission of a serious offense was accomplished in compliance with applicable regulations.  

2.  The separation code of "JKK" and RE Code of "4" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "misconduct, abuse of illegal drugs."

3.  The applicant's separation code of "JKK" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of his separation code or his RE Code. 

4.  The applicant has provided no evidence to show that the RE Code issued to him at the time of discharge was improper or inequitable or should be changed now.
5.  It is apparent that the applicant wishes to reenlist in the military to complete an obligation he made when he first enlisted; however, the narrative reason and RE Code of "4" prevent him from reenlisting.  

6.  The applicant's contentions were considered; however, they do not support a change in his RE Code of "4."

7.  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.

8.  In view of the circumstances in this case, the assigned RE code was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ena___  ___AU___  __RB___  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.




____  Eric N. Andersen____
          CHAIRPERSON




INDEX

CASE ID
AR20060011602
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070517
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20050930
DISCHARGE AUTHORITY
AR 635-200, chapter 14, paragraph 14-12c(2)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.