IN THE CASE OF:	  

		BOARD DATE:	        24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080017378 


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 of "4" be upgraded. 

2.  The applicant states that he wishes to have his RE code upgraded so that he can have an opportunity to reenlist.  He also contends, in an attachment citing regulatory guidance from Army Regulation 600-85 (Army Substance Abuse Program [ASAP]), that he was allowed to sign up for the ASAP but was made to cancel his appointment due to a court-martial hearing and was never afforded any further rehabilitation opportunities.

3.  The applicant provides an attachment with Army Regulation 600-85 regulatory guidance, his DD Form 214 (Certificate of Release or Discharge from Active Duty) from his 1 August 2007 discharge and Enlisted Record Brief, a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice [UCMJ]), which was last dated 14 March 2007, a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 25 April 2007, 11 pages of documents relating to a urinalysis test during which he tested positive for tetrahydrocannabinol (THC), a DA Form 4856 (Developmental Counseling Form), dated 10 April 2007, a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 15 May 2007, a DA Form 2823 (Sworn Statement), dated 
15 May 2007, a DD Form 458 (Charge Sheet), dated 30 May 2007, a Court-Martial Charges Transmittal Form, dated 30 May 2007, a DA Form 5111 (Summary Court Martial Rights Notification/Waiver Statement), dated 1 June 2007, and pages 1 and 2 of a three-page e-mail related to his summary court-martial in support of this application.  Although the applicant indicated that he provided a copy of his court-martial hearing, it was not among the documents received from him.   

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the United States Army Reserve on 20 December 2000, and subsequently enlisted in the Regular Army on 9 September 2004 [The fact that his DD Form 214 shows that he entered active duty on 27 July 2004 appears to be in error].  He completed advanced individual training and was awarded military occupational specialty 21E (Heavy Construction Equipment Operator).  He served in Iraq from 20 March 2005 to 26 January 2006, then was reassigned to Fort Leonard Wood, Missouri for what would be his final permanent duty station.

2.  On 14 March 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 27 December 2006 and 5 January 2007.  

3.  On 11 July 2007, the applicant's commanding officer informed him that she was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 (Separation for misconduct), Paragraph 14-12c (Commission of a serious offense) for commission of a serious offense by abusing illegal drugs.  In this notification, the applicant's commanding officer essentially indicated that he again wrongfully used marijuana on or about 13 April 2007.  She also recommended that he receive a general discharge, and informed him of his rights.

4.  On 12 July 2007, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated action to separate him for misconduct due to abuse of illegal drugs and its effects, of the rights available to him, and the effect of any taken by him in waiving his rights.  He waived consideration and personal appearance before an administrative separation board, and elected not to submit statements in his own behalf.  He also waived consulting counsel and representation by military counsel and/or civilian counsel at no expense to the Government.  He further acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

5.  On 19 July 2007, the proper separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c for commission of a serious offense by abusing illegal drugs, and waived the rehabilitative transfer requirement.  She also essentially directed that the applicant be issued a general discharge certificate.
6.  On 1 August 2007, the applicant was discharged accordingly.  Item 24 (Character of Service) of his DD Form 214 has an entry of "Under Honorable Conditions (General)," and item 25 (Separation Authority) of this document shows that the authority for his discharge was Army Regulation 635-200, paragraph 14-12c(2).  Item 26 (Separation Code) of this document has an entry of "JKK," and item 27 (Reentry Code) has an entry of "4."  Item 28 (Narrative Reason for Separation) of this document has an entry of "Misconduct (Drug Abuse)."

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States Army Reserve.  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.  RE codes "1" and "2" permit immediate reenlistment if all other criteria are met.  An RE code of "3" applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of "4" indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

8.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1, establishes RE codes to be assigned for each SPD.

9.  An SPD code of "JKK" applies to persons who are discharged for misconduct (drug abuse) under the provisions of paragraph 14-12c(2), Army Regulation 
635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of "4" is the applicable RE code assigned for individuals separated for this reason.

10.  Army Regulation 600-85, in effect at the time, provided that all Soldiers who are identified as drug abusers will be referred to the ASAP counseling center for screening, considered for disciplinary action under the Uniform Code of Military Justice, as appropriate, and processed for administrative separation in accordance with the appropriate enlisted or officer separation regulation with the exception of self-referrals.  It also provided that if the unit commander determines that the conduct, duty performance, and progress of the Soldier was unsatisfactory, and that further rehabilitation efforts cannot be justified, discharge from the military service would be initiated.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of "4" should be upgraded.

2.  The applicant's contention that he was never afforded any further rehabilitation opportunities after he claims he was made to cancel his ASAP appointment due to court-marital hearing was noted.  However, the applicant provided no evidence to support his contention that he was made to cancel an ASAP appointment.  The record is silent as to any action taken by the applicant's command in referring him to the ASAP counseling center.  However, as the applicant indicated that he had an appointment, it is obvious that he was referred to the ASAP counseling center in accordance with Army Regulation 600-85.  Additionally, the fact that he accepted NJP on 14 March 2007 for wrongfully using marijuana between on or about 27 December 2006 and 5 January 2007 signifies that he clearly was referred to the ASAP prior to him again wrongfully using marijuana on or about 13 April 2007.  As a result, it is reasonable to presume that his commanding officer determined that further rehabilitation efforts could not be justified based on his second offense of wrongfully using marijuana and initiated separation proceedings on him, which was within her authority and even required by Army Regulation 600-85.

3.  The fact that the applicant wishes to again serve in the military was also noted.  However, 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.

4.  It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c for commission of a serious offense by abusing illegal drugs.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

5.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his discharge for commission of a serious offense by abusing illegal drugs, and there is no basis upon which to change this reason.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.




      _______ _ XXX  _______   ___
               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)                                         AR20080017378



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ABCMR Record of Proceedings (cont)                                         AR20080017378



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