IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080005896 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected by upgrading his reentry code (RE Code) from RE-4 to RE-3 so he may reenter the Army.

2.  The applicant states that he wants to fulfill his duty to his country.       

3.  The applicant provides the following additional documentary evidence in support of his application:  

	a.  Undated self-authored statement.

	b.  DA Form 873 (Certificate of Clearance and/or Security Determination), dated 1 April 2005.

	c.  DD Form 214 Worksheet, dated 21 December 2006.    

	d.  DA Form 369 (Police Record Check), four forms, dated on miscellaneous dates.

	e.  Extract of Electronic Personnel Security Questionnaire.

	f.  Extract of a local newspaper, Hawaii Army Weekly, dated 18 August 2006.

	g.  Enlisted Record Brief (ERB), dated 7 December 2006.

	h.  DA Form 4187 (Personnel Action), dated 7 June 2006 (Attachment Orders).

	i.  DD Form 2216E (Hearing Conservation Data), dated 13 September 2006.

	j.  DD Form 2697 (Report of Medical Assessment), dated 14 September 2006.

	k.  DD Form 2808 (Report of Medical Examination), dated 14 September 2006.  

	l.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 3 November 2006.

	m.  Chapter 14 Separation Packet.

	n.  Internet Article titled “Protect Hawaii.”     

	o.  Listing of Grasonville, Maryland, Volunteer Fire Department. 

	p.  Two certificates of achievement, one undated, and the second dated 26 July 2006.

	q.  DA Form 4856 (Developmental Counseling Form), dated 12 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army for a period of 4 years on 25 January 2005.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was specialist (SPC)/E-4.

2.  The applicant’s records further show he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Grenade and Mortar Bars.  His records do not show any significant acts of valor during his military service.



3.  On 29 March 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully violating a lawful order by drinking under age on or about 4 March 2006.  The facts and circumstances surrounding his punishment are not available for review with this case.

4.  On an unknown date in September 2006, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana. 

5.  On 3 November 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for using marijuana between the dates of 31 August 2006 and 30 September 2006.  His punishment consisted of a reduction to private/E-1, forfeiture of $636.00 pay for two months, 45 days of restrictions, and 45 days of extra duty.  

6.  On 14 November 2006, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations), for misconduct, abuse of illegal drugs, and wrongfully violating a lawful order by drinking under age on or about 4 March 2006.

7.  On 14 November 2006, the applicant acknowledged receipt of the separation memorandum, 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 this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.  

8.  On 14 November 2006, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct, commission of a serious offense.  The immediate commander further remarked that elimination for unsatisfactory performance was not considered appropriate because the use of illegal drugs was a serious offense and not tolerated in the command and the Army.  

9.  On 20 November 2006, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200, with a General, Under Honorable Conditions Discharge Certificate.  

10.  On an unknown date between 20 November 2006 and 21 December 2006, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a General Discharge Certificate.  Accordingly, the applicant was discharged on 21 December 2006.  The DD Form 214 he was issued confirms he was discharged with an under honorable conditions (general) character of service.  This form further confirms that he completed a total of 1 year, 10 months, and 27 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 21 shows the entry “4.” 

11.  In his self-authored statement, the applicant describes his experiences at basic and advanced individual training and how he was approached by the special forces recruiter.  He then describes his experience at the 25th Infantry Division and how he was motivated to deploy to Iraq.  He further adds that he hung out with the wrong type of people and ended up testing positive during a unit urinalysis.  He concludes that he only asks for a second chance to serve his country. 

12.  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.

13.  Army Regulation 635-200 states, in pertinent part, 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 (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):



	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a favorable code that would allow him to reenter the Army.

2.  The 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.

3.  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.

4.  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 applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE Code.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



							XXX
       _    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005896



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ABCMR Record of Proceedings (cont)                                         AR20080005896



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