IN THE CASE OF:	  

		BOARD DATE:	  11 September 2008

		DOCKET NUMBER:  AR20080010863 


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 his reentry eligibility (RE) Code be change from "RE 4" to "RE 3" in order to finish his service to his country in the Army National Guard.

2.  The applicant states, in effect, that he was never given the chance to fix this problem.  It was the first time he had been in any trouble.  He has since put himself around better people and he is making all the right choices now.  He would love to finish his time the right way. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 16 March 2006.  He was trained in military occupational specialty (MOS), 52C, Utility Equipment Repairer.  

2.  On 18 October 2006, the applicant tested positive for marijuana. 

3.  On 2 November 2006, the applicant was punished under Article 15, under the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana, a controlled substance, on or about 18 September 2006 and 18 October 2006.  His punishment consisted of reduction to pay grade E-1, a forfeiture of $636.00 per month for one month, and 45 days restriction and extra duty.
4.  On 6 November 2006, the applicant underwent a mental status evaluation which revealed a fully oriented, fully alert individual whose behavior was normal.  His mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicates that he had the mental capacity to understand and participate in the proceedings and was mentally responsible.  He met the retention requirements of Army Regulation 40-501, chapter 3.  The remarks section of the evaluation form indicates that he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity.  There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels.

5.  On 8 November 2006, the applicant's commander advised the applicant he was taking action to separate him from the service prior to his ETS under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct, abuse of illegal drugs.  He based his recommendation on the applicant’s wrongful use of marijuana, a controlled substance.  

6.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

7.  On 8 November 2006, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct-commission of a serious offense.  

8.  The separation authority approved the recommendation for the applicant's discharge on 14 November 2006 and directed that he be issued a general discharge, under honorable conditions.  

9.  On 4 December 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-drug abuse.  He was issued a general discharge, under honor conditions.  He had completed 8 months and 19 days of creditable service.

10.  Item 27 (Reentry Code) of the applicant’s DD Form 214, shows the entry "4," item 26 (Separation Code) shows the entry "JKK," and the narrative reason for separation entered on his discharge certificate was, "misconduct, drug abuse."




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.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

12.  Paragraph 14-12c(2) provides for the separation of Soldiers for commission of a serious offense such as the abuse of illegal drugs

13.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.

14.  RE 3 applies to persons not fully qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

15.  RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct.

16.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator (SPD) "JKK," as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is "misconduct, commission of a serious offense, abuse of illegal drugs" and the authority for discharge under this SPD is "Army Regulation
635-200, chapter 14, paragraph 14-12c(2)."  


17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-drug abuse, was accomplished in compliance with applicable regulations.  

2.  The separation code of "JKK" and RE Code of "4" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "misconduct, drug abuse."

3.  The applicant's separation code of "JKK" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of his RE Code. 

4.  The applicant has provided no evidence to show that the RE Code issued to him at the time of discharge was improper or inequitable or should be changed now.

5.  It is apparent that the applicant wishes to reenlist in the Army National Guard to finish serving his country; however, the narrative reason and RE Code of "4" prevent him from reenlisting.  

6.  The applicant's contentions were considered; however, they do not support a change in his RE Code of "4."

7.  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)                                         AR20080010863



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ABCMR Record of Proceedings (cont)                                         AR20080010863



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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