IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080016468
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, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.
2. The applicant states, in effect, that being prevented from serving in the military due to a urinalysis test being positive for marijuana is unjust.
3. The applicant provides no additional documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 2 September 2004. He was discharged from the DEP on 13 September 2004. On 14 September 2004 he enlisted in the Regular Army and entered active duty for a period of 3 years and 25 weeks. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic). The applicant subsequently reenlisted on 2 October 2006 for a period of 5 years. The highest rank he attained while serving on active duty was specialist (SPC)/pay grade E-4.
2. The applicant received developmental counseling on 3 May 2007 for testing positive for marijuana during a unit urinalysis conducted on 10 April 2007.
3. On 30 May 2007, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of marijuana.
4. On 10 July 2007, the applicant's commander recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separation), chapter 14, paragraph 14-12c(2) for commission of a serious offense for the use of a controlled substance. On 6 August 2007, the applicant acknowledged receipt of the separation action notification and of his rights to consult with counsel prior to any election of rights.
5. On 6 August 2007, the applicant was advised by consulting counsel of the rights available to him and the effects of a general discharge under honorable conditions.
6. On 8 August 2007, the recommendation for separation was approved by the appropriate authority.
7. On 5 September 2007, the applicant was discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations) with an under honorable conditions (General) discharge. He was assigned a separation program designator (SPD) code of JKK and assigned an RE code of 4. He completed 2 years, 11 months, and 22 days of active military service.
8. Pertinent Army regulations provide that prior to discharge or release from active duty, Soldiers will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve components. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.
9. Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation 601-210 states that RE code 4 applies to persons separated from last period of service with a non-waivable disqualification.
10. Army Regulation 635-5-1 (SPD Codes), Table 2-3, states that the SPD code JKK denotes involuntary discharge, misconduct (Drug Abuse).
11. The Army Human Resources Command publishes a cross-reference of SPD and RE codes. This cross-reference shows that an SPD code of JKK is assigned an RE code of 4.
12. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his RE code of 4 be upgraded so that he may return to active duty was carefully considered and determined to be without merit.
2. There is no evidence in the available record, and the applicant has provided no evidence, that shows irregularity in the assignment of his RE code. The applicant was disqualified from reenlistment based on misconduct as a result of drug abuse, and the disqualification is non-waivable under Army Regulations.
3. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit sufficient evidence that would satisfy this requirement.
4. In the absence of evidence that the applicant's RE code was in error or improper, there is no basis to change his RE code.
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) AR20080016468
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ABCMR Record of Proceedings (cont) AR20080016468
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