IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080015433 


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 his reentry eligibility (RE) code be upgraded from    RE-4 to RE-3 so he may reenlist.

2.  The applicant states that he believes the decision to not allow him to reenter military service as a result of a mistake that he made and learned from is unjust.  

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 23 August 2006.  He completed basic combat training at Fort Jackson, South Carolina, and proceeded to Fort Lee, Virginia for completion of advanced individual training (AIT).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

2. The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 13 February 2007, for failing to report to his appointed place of duty and failing to obey an order or regulation on or about 7 February 2007.  His punishment consisted of a forfeiture of $340.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty; and 
	b.  on 1 March 2007, for disobeying a lawful order on or about 18 February 2007.  His punishment consisted of a forfeiture of $303.00 pay per month for 
1 month, 14 days of restriction, and 14 days of extra duty.

3.  On 6 March 2007, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine. 

4.  On 2 April 2007, 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 (AR) 635-200 (Personnel Separations) for misconduct, abuse of illegal drugs.  

5.  On 19 April 2007, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement on his own behalf.

6.  On 20 April 2007 (erroneously shown as 02 April 2007), the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct, commission of a serious offense.  The immediate commander further remarked that the applicant did not show potential for useful service under conditions of full mobilizations.

7.  On 25 April 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of AR 635-200 with a general discharge, under honorable conditions. 

8.  On 30 April 2007, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct-abuse of illegal drugs, and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 3 May 2007.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 8 months and 11 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry “4.”  


9.  AR 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 the regulation.

10.  AR 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.  AR 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 their 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 allow him to reenlist.

2.  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 of AR 635-200 due to misconduct, commission of a serious offense (drug abuse). 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 this discharge is a RE-4.

3.  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.

4.  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.  

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.



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      _______ _   _______   ___
               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)                                         AR20080015433



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ABCMR Record of Proceedings (cont)                                         AR20080015433



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