IN THE CASE OF:	

		BOARD DATE:	  4 December 2008

		DOCKET NUMBER:  AR20080015085 


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 eligibility (RE) code of RE-4 be upgraded to an RE-3.

2.  The applicant states that after he went through the process of his discharge, he was told by many noncommissioned officers (NCO) that after 6 months he would be eligible to rejoin the Army.  He further states he truly wants to get back into the Army.

3.  The applicant provides no additional evidence or official documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he initially enlisted in the Regular Army on 11 August 2005 for a period of 4 years and 17 weeks.  He successfully completed basic combat and advanced individual training and 
was awarded the military occupational specialty (MOS) of 11B (Infantryman).  The highest grade held by the applicant was private (PV2)/pay grade E-2.

2.  On 14 June 2006, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.



3.  On 17 July 2006, the applicant was evaluated by a psychologist due to his misconduct.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

4.  On 18 August 2006, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2) by reason of wrongful use of cocaine.  The commander advised the applicant he was recommending a general discharge under honorable conditions.

5.  The commander advised the applicant of his right to consult with consulting counsel, submit statements in his own behalf, obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his separation.  

6.  On 21 August 2006, after having consulted with appointed counsel for consultation, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to involuntarily separate him.  The applicant indicated he was not submitting statements in his own behalf and that he requested counsel.  The applicant also acknowledged that as the result of issuance of a general discharge he may expect to encounter substantial prejudice in civilian life.

7.  On 22 August 2006, the applicant's commander recommended that the applicant be separated from the Army prior to the expiration of his term of enlistment under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2) due to his wrongful use of cocaine.  

8.  On 22 August 2006, the applicant's intermediate commander recommended the applicant be separated by reason of commission of a serious offense and that he receive a general discharge.

9.  On 22 August 2006, the appropriate separation authority approved the recommendation for discharge by reason of commission of a serious offense, waived the requirement for a rehabilitative transfer, and directed the applicant be furnished a General Discharge Certificate.

10.  On 6 September 2006, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2).  The applicant was assigned a separation program designator (SPD) code of "JKK," and assigned an RE code of RE-4.  He had completed 1 year and 26 days active service that was characterized as general, under honorable conditions.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Paragraph 14-12c(2) defines the abuse of illegal drugs as serious misconduct.  This regulation provided that 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 considered appropriate.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes 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 SPD code “JKK” as shown on the applicant’s 
DD Form 214 specified the narrative reason for discharge as “Misconduct (drug abuse)."
 
13.  The SPD/RE Code Cross-Reference Table, dated 31 March 2006, shows that the appropriate RE code for the SPD code of "JKK" is RE-4.

14.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

15.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation 601-210 provides that an RE-4 applies to a person separated from their last period of service with a non-waivable disqualification.  These individuals are ineligible for enlistment.

16.  Paragraph 3-24 (Correction of Army reentry eligibility codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed so he can reenter the Army.  He further contends that his NCOs told him he would be able to rejoin the Army 6 months after his discharge.

2.  The applicant provided no evidence to substantiate his contention of being told he could rejoin the Army.  By definition, an RE code of 4 indicates a discharge due to an unwaiverable condition and constitutes ineligibility for enlistment.

3.  The evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The regulation defines abuse of illegal drugs as serious misconduct.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant was processed for separation due to illegal drug abuse.  Therefore, the SPD code "JKK" is correct.  According to the SPD/RE Code Cross-Reference Table the assignment of RE-4 for the applicant's SPD code of "JKK" is administratively correct.

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.  

6.  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 that 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)                                         AR20080015085



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ABCMR Record of Proceedings (cont)                                         AR20080015085



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