IN THE CASE OF:
BOARD DATE: 31 July 2008
DOCKET NUMBER: AR20080008691
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, in effect, that the reentry eligibility (RE) code 4 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 1 February 2006 be changed to an RE code that would allow him to be eligible to reenlist.
2. The applicant states, in effect, that due to the injustice he performed on himself that the authorities with the power to do so should give him the opportunity to serve in the U.S. Army once again. He states that he made mistakes in his conduct as an infantryman and hopes he can serve his country again.
3. The applicant provides his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant had prior service in the Army National Guard. He enlisted in the Regular Army on 16 September 2003.
2. On 7 October 2004, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine.
3. On 9 May 2005, the applicant accepted NJP under Article 15, UCMJ for wrongful use of marijuana.
4. On 25 August 2005, the applicant was convicted, by a summary court-martial, of wrongful use of marijuana. His sentence consisted of a forfeiture of two thirds of his pay for 1 month and confinement for 30 days.
5. On 2 October 2005, the applicants commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct. The reason cited by the commander was the applicant's testing positive for cocaine and being disrespectful and insubordinate towards his first sergeant.
6. On 2 October 2005, the applicant was advised by consulting counsel of the basis for the contemplated separation action. The applicant was advised of the impact of the discharge action. The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200. With advice from counsel the applicant requested a waiver of his right to an administrative board conditioned on receiving a general under honorable conditions discharge.
7. On 12 December 2005, the appropriate authority disapproved the conditional waiver.
8. On 20 December 2005, with advice from counsel the applicant submitted an unconditional waiver of his right to an administrative separation board with the understanding that he could receive an under other than honorable discharge. He waived his right to have a separation board, representation by military counsel, and elected not to submit a statement on his own behalf.
9. On 5 January 2006, the appropriate authority approved the recommendation and directed the applicant receive an under other honorable conditions discharge. On 1 February 2006, he was discharged after completing 2 years,
3 months, and 17 days of creditable active service during that enlistment with
30 days of lost time due to being in confinement.
10. The applicant's DD Form 214 with the period ending 1 February 2006 shows he was discharged under the provisions of paragraph 14-12c(2), Army Regulation 635-200, for "MISCONDUCT (DRUG ABUSE)"; item 27 (Reentry Code) shows the entry "4"; and item 26 (Separation Code) shows a separation code of JKK.
11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.
12. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of paragraph 14-12c(2), Army Regulation 635-200, by reason of misconduct - drug abuse. Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper reentry code to assign to Soldiers with an SPD of JKK.
13. An RE code 4 applies to persons not qualified for continued Army service and the disqualification is non-waivable.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that he needs his RE code changed on his DD Form 214 in order to reenter military service. However, the ABCMR does not change RE codes solely to allow former Soldiers to reenter military service.
2. Evidence of record shows that the applicant was separated from the service for misconduct (four instances of drug abuse) under the provisions of Army Regulation 635-200, chapter 14-12c(2). By regulation, this mandated that he be assigned an RE code 4 upon his separation from the Army.
3. The evidence of record confirms that the applicants separation processing was accomplished in accordance with the applicable regulations, to include the RE code 4 code assignment. Lacking independent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the assigned RE code 4 was appropriate.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ __xx____ __xx____ 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.
_______xxxx _______ ___
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.
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