IN THE CASE OF:	  

		BOARD DATE:	        24 July 2008

		DOCKET NUMBER:  AR20080010075 


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 a more favorable code.

2.  The applicant states that he was discharged for drug abuse; but, he is neither a drug user nor did he have any discipline problems in his six years in the Army.  He did everything he could, to correct the problems he encountered and even sought help outside the military because he was not getting any help from his chain of command.  He further adds that his 10-year old daughter was getting abused and lost all memory of the abuse and that he only wanted to be stationed closer to her.  He had no plans to leave the Army and had proof of his case, but he was told there was nothing that could be done.  He concludes that he is willing to take any drug test at any time to prove his case.

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 for a period of 3 years on 9 November 2000.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  His records also show he executed a two-year reenlistment on 27 February 2003 and a six-year reenlistment on 2 March 2004.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.
2.  The applicant’s records further show he was awarded the National Defense Service Medal, the Global War on Terrorism Service and Expeditionary Medals, the Army Service Ribbon, the Army Commendation Medal (2nd Award), the Army Achievement Medal, the Good Conduct Medal, the Iraq Campaign Medal, the Overseas Service Ribbon (2nd Award), the Combat Action Badge, Meritorious Unit Commendation, and the Driver and Mechanic Badge with Mechanic Bar.  His records do not show any significant acts of valor during his military service.

3.  On 13 March 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed, to his appointed place of duty, on or about 14 February 2006.  His punishment consisted forfeiture of $495.00 pay (suspended until 11 April 2006); 14 days of extra duty and 14 days of restriction (suspended until 11 April 2006); and an oral reprimand.

4.  On 3 October 2006, the applicant participated in a unit urinalysis and as a result he tested positive for marijuana. 

5.  On 7 November 2006, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana between the dates of on or about 3 September 2006 and on or about 3 October 2006, and for wrongfully possessing some amount of marijuana, on or about 28 September 2006.  His punishment consisted of a reduction to specialist (SPC)/E-4, forfeiture of $967.00 pay for two months, 45 days of extra duty, and 10 days of restriction.  

6.  On 7 December 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 failure to report.  

7.  On 14 December 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 December 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 he did not consider it feasible or appropriate to accomplish any disposition other than separation because the applicant represented a command liability and impaired good order and discipline in the unit.  

9.  On 18 December 2006, the applicant’s battalion commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200, with an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 19 December 2006, the applicant’s brigade 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 

11.  On 22 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 11 January 2007.  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 6 years,
2 months, and 3 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry “4.” 

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, in effect, allow him to reenter the Army.

2.  There is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows his daughter was being abused and lost all memory of the abuse and that he only wanted to be stationed closer to her.  Additionally, there is no evidence that the applicant addressed the alleged abuse issue with his chain of command or the installation support channels.  Furthermore, there is no evidence that the applicant’s use of marijuana was caused by the alleged abuse of his daughter.

3.  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.


4.  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.

5.  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)                                         AR20080010075



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ABCMR Record of Proceedings (cont)                                         AR20080010075



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