IN THE CASE OF:	  

		BOARD DATE:	   	  12 November 2008

		DOCKET NUMBER:  AR20080008602 


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 reentry (RE) code of RE-4 be corrected to one that will allow him to enlist in the military once again.

2.  The applicant states that he looks forward to enlisting in the military again.  He regrets being "chaptered out."  He was depressed over a family crisis and a friend being stabbed.  A female friend told him that controlled substances would help him forget the things that were depressing him.  Now, he has sought proper help and learned to make good decisions.  He looks forward to being able to serve and would like to make a career in the Army

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty and four letters of support in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty on 20 April 2004.  He completed training and was awarded military occupational training (MOS) 19D as a cavalry scout.  He was advanced to pay grade E-2 and stationed in Hawaii.

2.  The applicant's urine tested positive for cocaine on 22 March 2006.  He was counseled and referred to ASAP [Army Substance Abuse Program].  He tested positive for cocaine again on 3 April 2006.

3.  On 23 May 2006 a summary court-martial found the applicant guilty of two specifications of using cocaine and sentenced him to reduction to pay grade E-1, forfeiture of $848.00 pay per month for 1 month, and confinement for 10 days.

4.  The troop commander notified the applicant that he was recommending him for separation with a general discharge for commission of a serious offense by using cocaine.

5.  The applicant acknowledged the contemplated elimination action.  He consulted with counsel on 14 July 2006.  He acknowledged that if he were recommended for an other than honorable discharge, his case would be eligible for consideration by a board of officers.  He waived his rights to such a board, indicated that statements in his own behalf were not being submitted and he waived further consultation with and representation by counsel.  He acknowledged that he could expect to encounter substantial prejudice in civilian life because of the discharge and that he might be ineligible for any or all veteran's benefits under Federal and state laws.

6.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

7.  The troop commander recommended that the applicant be separated for commission of a serious offense.  The separation authority subsequently directed that the applicant be separated with a general discharge under honorable conditions for commission of a serious offense. 

8.  On 15 August 2006, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) and assigned Separation Program Designator (SPD) code of JKK and an RE-4.

9.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA Re codes.  RE-4 applies to persons separated from their last period of service with a non-waiveable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKK is the appropriate code for Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct (Drug Abuse.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers separated for this reason.

11.  The letters of support submitted by the applicant are as follows:

	a.  An Army private first class, a friend of some 6 years standing, relates that the applicant did not develop a sense of direction until he joined the Armed Forces.  He thinks the applicant will not make another serious mistake.

	b.  An active duty staff sergeant supports the applicant's return to the Service. The applicant is a natural leader.  He owned-up to his behavior and sought help. He should be given a second chance.  The staff sergeant really believes in the applicant.

   c.  A sergeant says that the applicant has re-built himself into someone who is worthy to be a Soldier.  He believes that the applicant has learned a great deal from the tough lessons he forced upon himself.

	d.  A newly commissioned second lieutenant writes that he has known the applicant since they were in high school together.  He believes the applicant is a people-oriented natural leader.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his supporters neither try to challenge the basis for his discharge nor make excuses for his behavior.  They simply assert that he has learned from the experience and deserves another chance to serve.

2.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.


3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of a properly issued RE Code for this purpose.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  _____X___  ____X____  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.



      __________X____________
               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)                                         AR20080008602



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ABCMR Record of Proceedings (cont)                                         AR20080008602



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