RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  04 March 2008
	DOCKET NUMBER:  AR20070015982 


	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

Ms. Deyon D. Battle

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. Pionk

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 that his reentry eligibility (RE) code be changed from RE-4 to an RE-3 or a code that will allow him to reenlist in the Regular Army (RA).

2.  The applicant states he requested to use his right to speak with the brigade commander in regard to staying in the Army and his request was never granted.  He states that on one of the forms that were submitted at the time of his mental status evaluation, his drill sergeant falsely stated that he did not wish to be retained in the Army.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  On 15 May 2006, the applicant enlisted in the United States Army Reserve (USAR) under the Delayed Entry Program, in Brooklyn, New York, for 3 years, in the pay grade of E-1.  He enlisted in the RA on 29 June 2006.

2.  The available records show that the applicant underwent his initial counseling on 13 July 2006.  During his counseling, he was told what was expected of him as a soldier in the Army; he was informed regarding Veterans Educational Benefits; and he was instructed regarding the responsibility of weapons.  The applicant acknowledged receipt of his counseling forms and he indicated that he agreed with the information contained therein.

3.  The applicant was counseled six times between 20 July 2006 and 18 September 2006 for unsatisfactory performance, due to missed or uncompleted training.  Each time he was counseled he was informed that missed training restart is considered after missing 72 accumulative hours of mandatory training.  He was also informed that if he should refuse to restart, a recommendation may be made to the commander that he be processed for immediate separation from the Army under the provisions of Army Regulation 635-200, chapter 11.  He was also informed of the affects of being recommended for discharge under other provisions of Army Regulation 635-200.  The applicant acknowledged receipt of the counseling forms indicate that he agreed with the information contained therein.



4.  On 20 September 2006, the applicant was counseled for failure to obey a lawful order or regulation; for willfully disobeying a superior commissioned officer; and for wrongful use, possession, etc., of controlled substances.  During the counseling session, he was informed that he was being recommended for punishment under the Uniform Code of Military Justice.  According to the counseling form, the applicant tested positive for cocaine during a urinalysis and admitted to using an "eight ball" of cocaine (a controlled substance), with a friend.  The applicant was told that if his conduct continued, action may be initiated to separate him from the Army under the provisions of Army Regulation 635-200, chapter 11.  He was informed of the affects of being furnished a discharge while in an entry level status.  The applicant acknowledged receipt of the counseling form by indicating that he agreed with the information contained therein.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 27 September 2006, for wrongfully using cocaine, a Schedule I controlled substance.  His punishment consisted of a forfeiture of pay in the amount of $589.00 per month for 2 months, restriction for 45 days, and extra duty for 45 days.

6.  On 29 September 2006, the applicant was counseled for unsatisfactory performance, due to missed or uncompleted training.  He was again informed of the consequences of being furnished a discharge under the provisions of several chapters contained in Army Regulation 635-200.

7.  On 30 September 2006, the applicant was counseled by his company commander and his drill sergeant regarding a proposed recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  The company commander and the applicant's drill sergeant both cited his negligent behavior for wrongful use and possession of a controlled substance as the basis for the proposed recommendation for discharge.  The applicant was informed of the affects of a less than honorable discharge and that he was told that he could encounter substantial prejudice in civilian life.  The applicant acknowledged receipt of the counseling forms indicating that he agreed with the information contained therein.

8.  On 17 November 2006, the applicant was notified that he was being recommended for discharge, under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct, commission of a serious offense.  The commander cited the applicant’s illegal use of cocaine as the basis for the 


recommendation for discharge.  He acknowledged receipt of the notification on 17 November 2006 and, after consulting with counsel, opted not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on 27 November 2006, and he directed that the applicant's service be uncharacterized.

10.  Accordingly, on 5 December 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(2), for misconduct, due to illegal use of drugs.  The Certificate of Release or Discharge from Active Duty (DD Form 214) that he was furnished shows his service as uncharacterized and his RE code as RE-4.

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 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  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.  

12.  Army Regulation 601-210 provides the guidance for the issuance of RE codes upon separation from active duty.  It states, in pertinent part, that these codes are not to be considered derogatory in nature, they are simply codes that are used for identification of an enlistment processing procedure.  This regulation further states that when a Soldier is assigned a JKK separation code, he/she will be assigned an RE-4 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned a RE code in accordance with regulations then in effect.

2.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code that the applicant was assigned.

3.  The applicant's contentions have been noted.  However, there is no evidence of record, nor has the applicant submitted any evidence to support his contention that any false statements were made by anyone about him or his desire to 


remain in the Army.  The evidence of record shows that he was counseled for failure to obey a lawful order or regulation; for willfully disobeying a superior commissioned officer; and for wrongful use of a controlled substance.  He had NJP imposed against him as a result of his acts of misconduct and at the time of his discharge process, he was afforded the opportunity to submit a statement in his own behalf. He opted not to do so.  The fact that he now has a desire to reenlist in the Army is not a sufficient justification to change the RE code that he was assigned at the time of his discharge.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA__  __WDP__  __JLP ___  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.




___James E. Anderholm _
          CHAIRPERSON




INDEX

CASE ID
AR20070015982
SUFFIX

RECON

DATE BOARDED
20080304
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  1021
100.0000/ADMINISTRATIVE MATTERS
2.  4
100.0300/CHANGE OF RE CODE
3.

4.

5.

6.