IN THE CASE OF:	  

		BOARD DATE:	       23 April 2009

		DOCKET NUMBER:  AR20080018935 


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 that his reentry eligibility (RE) code be changed so that he can reenlist.

2.  The applicant states that the Army Discharge Review Board (ADRB) concluded that someone other than the general court-martial convening authority had directed his discharge and that it was improper.  He also states that he never failed a drug test.  He had 12 of them in a 10 month period.  He was never convicted or punished for any drug related offense.  He believes that the nation needs him, he should be allowed to reenlist,.  Nothing would make him prouder than a second chance to serve this country.

3.  The applicant provides copies of his Honorable Discharge Certificate, ADRB correspondence and decisional document, his current DD Form 214 (Certificate of Release or Discharge from Active Duty) showing an honorable discharge and the original [now voided] DD Form 214 showing a general discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on 
29 September 1999.  He completed training as a missile launcher crewmember and was stationed in Germany in May 2000. 


2.  The applicant's record contains the following information concerning his misconduct:

   a.  On 19 September 2000 the applicant was counseled about, "Pending Charges of Conspiracy and Accessory After the Fact."  He was advised that separation action would be initiated, if the subject behavior continued.  The applicant acknowledged the counseling and indicated that he agreed.   

   b.  Sworn affidavits, dated 7 and 8 December 2000 by two drug abusers describe the applicant's involvement in possessing, using and distributing illegal drugs.
   
   C.  He was listed on a 3 January 2001 military police blotter in connection with numerous drug charges.  

   d.  A Criminal Investigation Command (CID) Report, dated 31 January 2001 names the applicant and others in numerous incidents of drug use and distribution.  
   
   e.   A 9 April 2001 Memorandum for Record indicates that the applicant had been convicted on 18 September 2000 of conspiracy and accessory after the fact.  In January 2001 he was identified as involved in several instances of use, possession and distribution of MDMA (Ecstasy), LSD, and use of marijuana and hashish.  In April 2001, he was enrolled in the Community Counseling Center for alcohol abuse.  The memorandum noted that he was still under investigation.  

3.  The battery commander, in a memorandum dated 26 April 2001, informed the applicant that he was being recommended for separation for serious misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, for possession, use and distribution of MDMA and LSD and use of marijuana and hashish.  He informed the applicant that a general discharge was recommended but that the separation authority was not bound by that recommendation.  He also noted that, if the applicant requested it and an administrative board considered the case, the separation authority could not direct a less favorable discharge than the board recommended.  The notice also informed the applicant that he could consult with military or civilian counsel.  

4.  The applicant acknowledged receipt of the notice.  He then waived his right to consult with counsel.


5.  The battalion commander approved the separation action and recommended the issuance of a general discharge.  

6.  The Commander, Division Engineers approved the separation and directed that a general discharge be issued.

7.  On 11 May 2001 the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct by commission of a serious offense.  He was assigned a separation program designator (SPD) code of JKQ and an RE code of 4.  He had served 
1 year, 7 months and 13 days of creditable service and had no lost time.        

8.  On 21 September 2007 the ADRB noted that the notification memorandum had cited board procedures and concluded that an improper authority had directed the applicant's discharge and that the discharge, itself, was therefore, improper.  The applicant' characterization of discharge was upgraded to honorable, but neither the reason nor RE code was changed. 

9.  Army Regulation 635-200 (Personnel Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Paragraph 14-12c applies to serious misconduct and subparagraph 14-12c(2) specifies that any abuse of illegal drugs is serious misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Subparagraph 14-12c(2)b(3) states, the separation reason in all separations authorized by this paragraph will be "misconduct-abuse of illegal drugs."  A discharge under other than honorable conditions is normally considered appropriate.  

10.  Army Regulation 601-210, in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-3 applied to persons separated from their last period of service with a waivable disqualification, and RE-4 to persons with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.  


11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKQ was the appropriate code 
for the applicant based upon the guidance provided in Army Regulation 635-5-1 
for Soldiers separating under the provisions of AR 635-200, Chapter 14, for misconduct–commission of a serious offense.  The SPD code JKK was appropriate for those separated for misconduct – drug abuse.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper RE code to assign to Soldiers for this misconduct–commission of a serious offense and RE code 4 was proper for those processed and separated for misconduct-drug abuse.  

DISCUSSION AND CONCLUSIONS:

1.  The applicants states, in effect, that his RE code should be changed because the ADRB upgraded his characterization of discharge.  He never used drugs and he would be proud to serve.

2.  The applicant was separated for commission of a serious offense by abuse of illegal drugs.

3.  In light of the available record, the applicant 's assertion that he never used drugs, is not credible.  

4.  The reason and SPD recorded on his DD Form 214 is not appropriate for  separation for drug abuse.  The correct SPD code for misconduct-abuse of illegal drugs is JKK.  The SPD/RE Code Cross Reference Table in Army Regulation 635-5 indicates that RE-4 is the correct code.

5.  In view of the circumstances in this case, the assigned RE code was and still is appropriate.

6.  The narrative reason for separation was erroneous, however it is the practice  of this Board to not make an applicant any worse off.  Therefore it will remain unchanged.   

7.  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 the aforementioned requirement.

8.  There appears to be no basis for removal or waiver of the disqualification which established the basis for the RE code.
9.  In view of the foregoing, there appears to be no basis for granting the applicant’s request.

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)                                         AR20080018935





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ABCMR Record of Proceedings (cont)                                         AR20080018935



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