IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20080018880 


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 was discharged from the military after finally receiving help for a drug problem.  He also contends that he went to rehabilitation for 48 days and that he has been clean ever since.  He further states that he would like to reenter the military, but that his RE code of "4" needs to be changed in order for him to do so.

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 24 August 2005.  He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He was then reassigned to Fort Hood, Texas.

2.  On 27 April 2006, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from his superior noncommissioned officer (NCO).  His punishment consisted of a reduction in rank/grade from private first class (PFC)/E-3 to private (PV2)/E-2 and forfeiture of $333.00 pay, both of which were suspended until
26 September 2006; extra duty and restriction for 14 days; and an oral reprimand.  
3.  On 3 August 2006, the suspension of the punishment of reduction to PV2 and forfeiture of $333.00 pay imposed on 27 April 2006 was vacated and ordered duly executed.  The reason for the vacation of suspension was the applicant's failure to go at the time prescribed to his appointed place of duty on 18 July 2006.

4.  On 13 September 2006, the applicant accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order issued by a general officer by wrongfully possessing alcohol in his room while being under the age of 21.  His punishment consisted of a reduction in rank and pay grade from PV2/E-2 to private (PV1)/
E-1, a suspended forfeiture of $297.00 pay, and extra duty and restriction for
14 days.  The applicant appealed this punishment, but his appeal was denied.

5.  On 17 October 2006, the applicant accepted NJP under Article 15 of the UCMJ for wrongfully using D-amphetamine, D-methamphetamine, Methylenedioxymethamphetamine (MDMA) [also known as Ecstasy], and Methylenedioxyamphetamine (MDA) [a psychedelic hallucinogenic drug] between on or about 2 and 5 September 2006.  His punishment consisted of reduction in rank/grade from PV2/E-2 to PV1/E-1, forfeiture of $636.00 pay per month for 2 months, and extra duty and restriction for 45 days.

6.  The applicant deployed to Iraq from 23 October 2006 to 6 January 2008.

7.  On 12 May 2008, a mental status evaluation was conducted on the applicant, and he was cleared for any administrative action deemed appropriate by his command.

8.  On 4 June 2008, the applicant's commanding officer informed him that he 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).  The reasons for his action were the applicant testing positive for D-amphetamine, 
D-methamphetamine, MDA, and MDMA on 5 September 2006; testing positive for cocaine on 24 March 2008; and testing positive for cocaine, D-amphetamine, and D-methamphetamine on 3 April 2008.  He also referenced the applicant disobeying a lawful order from an NCO, wrongfully possessing alcohol while being under the age of 21, and failing to be at his appointed place of duty.   He also recommended that the applicant receive a general discharge, and informed him of his rights.



9.  On or about 4 June 2008, 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 commission of a serious offense under the provisions of paragraph 14-12c of Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action 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, under honorable conditions discharge was issued to him.  

10.  On 12 June 2008, 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, and directed that he be issued a general discharge certificate.  

11.  On 17 June 2008, the applicant was discharged.  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)."

12.  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 code "1" permits 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.

13.  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.  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.  This regulation also provides that an SPD code of "JKQ" applies to persons who are discharged for misconduct due to commission of a serious offense.  The SPD/RE Code Cross Reference Table shows that an RE code of "3" is the applicable RE code assigned for individuals separated for this reason.

DISCUSSION AND CONCLUSIONS:

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

2.  While the applicant clearly was abusing drugs while on active duty, his commanding officer did not initiate separation proceedings to discharge him under the provisions of paragraph 14-12c(2), Army Regulation 635-200 for abuse of illegal drugs, but rather under the provisions of paragraph 14-12c of this regulation for commission of a serious offense.  The applicant was advised by consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense, not abuse of illegal drugs, and the separation authority approved the applicant's separation for the commission of a serious offense, not abuse of illegal drugs.

3.  In view of the foregoing, the applicant is entitled to correction of items 25, 26, 27, and 28 of his DD Form 214 as shown below.  However, the applicant is advised that while he might possibly be permitted to enlist into the Armed Forces with a waiver, enlistment standards depend upon the needs of the Services at the time of application for enlistment, and that there is no inherent right by a former service member to be enlisted into the Armed Forces.  Therefore, the applicant should seek further guidance from a Service recruiter.

BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the applicant's DD Form 214 be corrected by:

	a.  deleting from item 25 of the applicant's DD Form 214 the entry
"AR 635-200, PARA 14-12C(2)" and replacing it with the entry "AR 635-200, PARA 14-12C";

	b.  deleting from item 26 of the applicant's DD form 214 the entry "JKK" and replacing it with the entry "JKQ";

	c.  deleting from item 27 of the applicant's DD Form 214 the entry "4" and replacing it with the entry "3"; and

	d.  deleting from item 28 of the applicant's DD Form 214 the entry "MISCONDUCT (DRUG ABUSE)" and replacing it with the entry "MISCONDUCT - SERIOUS OFFENSE."



      ________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)                                         AR20080018880



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ABCMR Record of Proceedings (cont)                                         AR20080018880



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