RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 January 2008
	DOCKET NUMBER:  AR20070012311 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Donald W. Steenfott

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 correction of his records by changing his Reentry Code (RE Code) and the Narrative Reason for Separation to a more favorable entry. 

2.  The applicant states, in effect, that the current entries impact his employment opportunities.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 November 2006; and a copy of the Army Discharge Review Board decision, dated 31 July 2007, to upgrade his discharge, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he enlisted in the Regular Army on 30 September 1997 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52D (Power Generator Equipment Repairman).  He was honorably discharged and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 29 September 2000.  After a short break in service, the applicant enlisted in the Regular Army on 26 January 2001 for a period of 4 years.  He was promoted to the rank of sergeant (SGT)/E-5 on 28 August 2002.

2.  The applicant’s records show that he served in Kuwait and Iraq in support of Operation Iraqi Freedom during the period 2 February 2003 through 20 January 2004.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Army Good Conduct Medal (2nd Award), the Overseas Service Ribbon (2nd Award), the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Expert Marksmanship Qualification Badge with Grenade Bar, the Driver and Mechanic Badge with Mechanic Bar, the Air Assault Badge, the Army Commendation Medal (2nd Award), the Army Achievement Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, and Global War on Terrorism Expeditionary Medal, the Noncommissioned Officer Professional Development Ribbon, and two Overseas Service Bars.  His records do not show any significant acts of valor during his military service.


4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 June 2005, for failing to go to his appointed place of duty on or about 24 October 2004.  His punishment consisted of reduction to specialist/E-4 and 35 days of extra duty.

5.  On 24 October 2005, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.  

6.  On 24 January 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for using cocaine between on or about 25 July 2005 and on or about 26 August 2005.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $617.59 pay for two months, 45 days of restriction (suspended until 15 Mach 2006), and 45 days of extra duty (suspended until 15 March 2006). 

7.  On 26 January 2006, the applicant’s immediate commander notified the applicant that he was initiating action to separate him from the Army for abuse of illegal drugs.  The immediate commander cited the applicant’s testing positive for cocaine on 24 October 2005 and the wrongful use of cocaine between on or about 25 July 2005 and on or about 25 August 2005 as shown by a positive urinalysis for use of cocaine on 26 August 2005.  He recommended an under other than honorable conditions discharge. 

8.  On 26 January 2006, the applicant acknowledged receipt of the separation memorandum.  On 16 March 2006, he consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

9.  On 7 April 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of patterns of misconduct-commission of a serious offense and directed the applicant be furnished an Under Other than Honorable Conditions Discharge Certificate.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged with a Character of Service of “Under Other Than Honorable Conditions”, a Narrative Reason for Separation of “Misconduct-Drug Abuse”, and a Reentry Code of “4.”  This form further confirms that he completed a total of
7 years, 4 months, and 23 days of creditable active military service.

10.  On 31 July 2007, the Army Discharge Review Board granted the applicant's request to upgrade his discharge to General, Under Honorable Conditions.

11.  Army Regulation 635-200, in effect at the time, 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  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) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 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 Regular Army RE codes:

		a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army; 

	b.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; and

	c.  RE-4 applies to individuals separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-code 4 and narrative reason for separation of “Misconduct” should be changed to something more favorable.

2.  The ADRB considered the applicant's RE code and Narrative Reason for Separation when it directed its upgrade action and determined that they should not be changed because of the misconduct which led directly to the applicant's discharge.  Although the ADRB directed that the applicant's discharge be upgraded, the underlying reason for his discharge was his misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.

3.  The evidence of record confirms that the applicant’s Narrative Reason for Separation and RE codes were assigned based on the fact that he was separated under the provisions of chapter 14, Army Regulation 635-200 due to misconduct, commission of a serious offense.  Therefore, he received the appropriate Narrative Reason for Separation and RE code associated with his discharge.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant was discharged under the provisions of paragraph 14-12 of Army Regulation 635-200. The only valid narrative reason for discharge permitted under that paragraph is "Misconduct.”  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The RE-4 assigned to the applicant at the time of his discharge is correct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __jlp___  __dws___  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.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070012311
SUFFIX

RECON

DATE BOARDED
20080110
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.
144.0000
3.

4.

5.

6.