RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 February 2008
	DOCKET NUMBER:  AR20070014058 


	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

Ms. Rose M. Lys

Member

Mr. Qawiy A. Sabree

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 he was not a bad Soldier during his military service and that he encountered domestic problems with his wife that led him to use drugs.  He concludes that he would like the opportunity to reenter the Army and serve his country with honor and commitment. 

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army on 7 September 2004 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained during his military service was private/E-2.

2.  The applicant’s awards and decorations include the Army Service Ribbon, the National Defense Service Medal, and the Global War on Terrorism Service Medal.  The applicant's records do not show any significant acts of valor during his military service.

3.  On 25 January 2005, while stationed at Fort Hood, Texas, the applicant participated in a unit urinalysis and his specimen tested positive for cocaine.

4.  On 19 April 2005, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty on 22 January 2005, 4 February 2005, and 14 February 2005; and for wrongfully using cocaine on or between 22 January 2005 and 25 January 2005.  His punishment consisted of reduction to private/E-1, forfeiture of $617.00 pay per month for two months, 45 days of restriction, and 45 days of extra duty.

5.  On 21 June 2005, the applicant’s immediate commander notified the applicant that he was initiating action to separate him from the Army in accordance with chapter 14 of Army Regulation 635-200 (Personnel Separations), for commission of a serious offense, use of cocaine.  The immediate commander recommended a general discharge, under honorable conditions.
6.  On 21 June 2005, 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.

7.  On 21 June 2005, the immediate commander initiated action to separate the applicant from the Army under the provisions of chapter 14 of Army Regulation 635-200, commission of a serious offense.  He remarked that the applicant was counseled, and through subsequent behavior, demonstrated a lack of acceptance of rehabilitative measures.  He demonstrated through repeated conduct, after formal counseling, that other disposition would be inappropriate.  He concluded that a rehabilitative transfer would have served no useful purpose and requested the requirement for a rehabilitative transfer be waived.  He further recommended a general discharge, under honorable conditions.

8.  On an unknown date, the applicant’s intermediate commander recommended approval of the applicant’s separation for commission of a serious offense.  He further recommended a general discharge, under honorable conditions.  

9.  On 23 June 2005, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200 by reason of commission of serious offense and directed the applicant be furnished a General Discharge Certificate.  Accordingly, he was discharged on 30 June 2005.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge confirms he was discharged with a general discharge, with an under honorable conditions character of service, a Narrative Reason for Separation of “Misconduct,” and a Reentry Code of “4.”  This form further confirms that he completed 9 months and 24 days of creditable active military service.

10.  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.

11.  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 the 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.  Evidence of record confirms that the applicant’s RE code was 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.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct” and the appropriate RE code associated with his discharge is RE-4.

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

__wdo___  __rml___  __qas___  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
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.