RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070012986 


	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. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 Reentry Eligibility Code (RE Code) from RE-4 to RE-3. 

2.  The applicant states that his commander informed him prior to separation that he would be able to get back in the Army after his discharge

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 May 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army on 5 October 2006 for a period of 3 years.  He completed basic combat at Fort Knox, Kentucky.

2.  On 5 January 2007, while attending advanced individual training at Fort Gordon, Georgia, the applicant participated in a unit urinalysis and his urine specimen tested positive for marijuana.

3.  On 28 February 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for using marijuana between 5 December 2006 and 5 January 2007.  His punishment consisted of forfeiture of $650.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

4.  On 2 April 2007, the applicant’s immediate commander notified the applicant that he was initiating action to separate him from the Army for commission of a serious offense, use of marijuana.  The immediate commander recommended a general, under honorable conditions discharge.

5.  On 2 April 2007, the applicant acknowledged receipt of the separation memorandum and on the same day he declined the opportunity to consult with legal counsel.  However, he was advised by his immediate commander 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/rights that were available to him.

6.  On 2 April 2007, the immediate commander remarked that the applicant’s performance had been substandard and that the applicant had shown an inability to be trusted, learn, or live the Army values.  Though not disrespectful, he clearly did not have the potential to become a productive soldier in the military and that all efforts to rehabilitate him were exhausted.

7.  On 3 April 2007, the applicant’s intermediate commander recommended approval of the applicant’s separation and commented that the applicant had brought discredit to his unit and the Army through his misconduct.  He further recommended a general, under honorable conditions discharge.  

8.  On 20 April 2007, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 (Personnel Separations) by reason of commission of serious offense (misconduct-abuse of illegal drugs), and directed the applicant be furnished an Entry Level Separation (Uncharacterized). Accordingly, he was discharged on 3 May 2007.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a Character of Service of “Uncharacterized”, a Narrative Reason for Separation of “Misconduct-Drug Abuse”, and a Reentry Code of “4.”  This form further confirms that he completed 6 months and 29 days of creditable active military service.

9.  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 is 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.  If characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be described as uncharacterized.

10.  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) prescribes 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-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.

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

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record confirms that the applicant’s reason for separation and RE code 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.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The only valid narrative reason for discharge permitted under that paragraph is "Misconduct.”  Therefore, he received the appropriate RE code associated with his discharge

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.

3.  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

__dkh___  __jkh___  __eem___  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.



							David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.

2.

3.

4.

5.

6.