IN THE CASE OF:	

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080018918 


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 eligibility(RE code) be upgraded from RE 4 to a higher RE code.

2.  The applicant states he would like his RE code changed so he can reenlist.

3.  The applicant provides a personal statement from his parents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows that he enlisted in the Regular Army for a period of 3 years on 1 September 2004.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class/pay grade E-3.

2.  On or about 15 February 2005, the applicant accepted summarized nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty on or about 15 February 2005.  His punishment was extra duty and restriction for 14 days.

3.  On 6 April 2005, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failure to go at the time prescribed to his appointed place of duty on or about 10 March 2005.  His punishment consisted of reduction in grade to private/pay grade E-1, 14 days of extra duty, and 14 days of restriction, all suspended until 3 October 2005.

4.  On 21 December 2005, the applicant participated in a unit urinalysis and as a result he tested positive for marijuana.

5.  On 24 February 2006, the applicant was found guilty in trial by summary court-martial of violations of Article 112a of the UCMJ for wrongful possession of marijuana between on or about 21 November 2005 and 21 December 2005; Article 112a for wrongful possession of Percocet, a controlled substance; and violation of Article 134 for on or about 21 December 2005 wrongfully providing a false urine sample during a unit urinalysis.  His sentence was reduction in grade to private/pay grade E-1 and confinement for 30 days.

6.  On 24 February 2006, 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 635-200 (Personnel Separations) for misconduct-commission of a serious offense.

7.  On 24 February 2006, the applicant acknowledged receipt of the separation memorandum.  On 28 February 2004, he 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 and a personal appearance before a separation board, if entitled to a board.

8.  On 18 March 2006, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 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 mobilization.

9.  On 20 March 2006, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with a general discharge under honorable conditions.

10.  On 7 April 2006, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct-commission of a serious offense, and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 3 May 2007.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 year, 7 months, and 17 days of creditable active military service.  Item 27 (Reentry Code) of this DD Form 214 shows the entry "4."

11.  The applicant's parents submitted a personal statement on his behalf stating, in effect, that their son has matured significantly and works diligently.  They would like their son to have an opportunity to restore his reputation as a U.S. Army Soldier and honorably serve his country.

12.  Army Regulation 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.

13.  Army Regulation 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.  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 U.S. Army Reserve.  Table 3-1 included a list of the Regular Army 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 the 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.

14.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated October 1999, shows that the appropriate RE code for the SPD code of "KFS" is RE-4.

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 Army Regulation 635-200 due to misconduct, commission of a serious offense (drug abuse).  The underlying reason for his discharge was his misconduct–commission of a serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate RE code associated with this discharge is 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 does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

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)                                         AR20080018918



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ABCMR Record of Proceedings (cont)                                         AR20080018918



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