IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080012019 


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 (RE) Code be changed.

2.  The applicant states, in effect, that everyone makes mistakes and deserves another chance.  He also states that after being discharged from the military he has had time to think about his mistakes and he would really like to reenlist.    

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 20 July 2007.  He was trained in, awarded, and served in military occupational specialty (MOS) 92A (Automated Logistical) and the highest rank he attained while serving on active duty was Private (E-1).  

2.  On 21 March 2008, the applicant was convicted by a Special Court-Martial of four specifications of without authority, failure to go at the time prescribed to his appointed place of duty from 17 November 2007 to 24 January 2008; one specification of being disrespectful in language and deportment towards a noncommissioned officer and willfully disobeying a an order on 25 January 2008; one specification of disobeying a lawful order and wrongfully possessing alcohol, and one specification of stealing two shirts and sunglasses valued at less than $500.00 from the Army Air Force Exchange Service on 25 November 2007.  He was sentenced to a forfeiture of $898.00 and confinement for 30 days. 
3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment for the wrongful of use marijuana, a controlled substance on 3 May 2008.  His punishment was a reduction to the rank of private (E-1), a forfeiture of $673.00 pay for 2 months, extra duty for 45 days, and restriction for 45 days.

4.  The applicant's records also show that he received 24 General Counseling statements from 30 September 2007 through 13 May 2008 for various offenses which included failure to repair, dereliction of duty, failure to obey lawful orders, larceny and the wrongful appropriation of a shirt.

5.  On 11 May 2008, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 
14 -12c (2), Army Regulation 635-200, by reason of misconduct- abuse of illegal drugs, with a general discharge under honorable conditions.  The reason for the proposed action was the applicant’s wrongful use of marijuana.

6.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and declined to submit statements in his own behalf.  

7.  On 20 May 2008, the separation authority approved the applicant’s request for discharge and directed that he receive a general discharge under honorable conditions.

8.  On 23 May 2008, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of misconduct (Abuse of Illegal Drugs), with a general discharge under honorable conditions.  The separation document (DD Form 214) he was issued at the time confirms he held the rank of private/E-1 (PV1), and he had completed a total 10 months and 
4 days of active military service.  The DD Form 214 also shows that based on the authority and reason for separation, he was assigned a separation program designator (SPD) code of JKK and an RE code of RE-4.  

9.  The applicant authenticated his 23 May 2008 DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  
10.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

11.  Pertinent Army regulations provide 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 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. T hat chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are permanently disqualified for continued Army service.

12.  Army Regulation (AR) 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 is the appropriate code assigned Soldiers separated under the provisions Army Regulation 635-200, chapter 14-12c, by reason of misconduct (Abuse of Illegal Drugs).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 14-12c for misconduct (Abuse of Illegal Drugs).  The applicant’s record shows that he violated the Army’s policy not to possess or use illegal drugs.  The applicant as a Soldier had a duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant risked his military career and compromised the trust and confidence placed in him as a Soldier.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  



2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulations.  This includes the assignment of his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process.  

3.  RE-4 applies to persons who are permanently disqualified for continued Army service.

4.  Therefore, 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)                                         AR20080012019



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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