IN THE CASE OF:	  

		BOARD DATE:	       5 MARCH 2009

		DOCKET NUMBER:  AR20080008120 


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 2007 RE (Reentry) Code and SPD (Separation Program Designator) Code be changed to permit him to return to military service.  He also asks that his 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect his combat and other service awards as well as his complete military training.

2.  The applicant states that while his 2007 DD Form 214 reflects his correct discharge, the RE Code of RE-4 and SPD Code of JKK are incorrect.  He states that not all separations for misconduct warrant code entries which forever bar an individual from future military service.  He states that he was told by his legal advisor that he would be ineligible for enlistment in the United States Army for a period of 2 years after his discharge.  However, he states a clear injustice has occurred because his codes bar him from all future military service.  He also notes that his DD Form 214 does not reflect his combat and other service awards and his complete military education.

3.  The applicant provides a copy of his election of rights statement associated with his administrative discharge, copies of training certificates denoting completion of OSUT (One Station Unit Training), airborne training, and the Ranger Indoctrination Program.  He also submits a statement of support from his parents.




COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests nothing beyond that requested by the applicant.

2.  Counsel states it is evident his client’s DD Form 214 is missing entries for a number of attended schools and combat/deployment-related awards.  He also states that it appears his client’s separation and reentry codes may be in error, especially in light of his receipt of a general (under honorable conditions) discharge.

3.  Counsel provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army (RA) Soldier on 9 September 2005 in the rank of private (PV2)/E-2 after approximately 3 months in the Delayed Entry Program (DEP).  The applicant successfully completed OSUT at Fort Benning, Georgia on
13 December 2005 and was awarded military occupational specialty (MOS) 11B (infantryman).  In February 2006 the applicant successfully completed airborne training followed by a 4 week Ranger Indoctrination Program prior to being assigned to the 75th Ranger Regiment at Fort Benning.

2.  The applicant’s 2007 DD Form 214 shows deployment to Iraq between 6 April 2006 and 6 July 2006.  He also participated in the National Resolution campaign (16 Dec 2005 – date to be determined) during his tenure in Iraq.  On 1 August 2006 the applicant was advanced to the rank of private first class (PFC)/E3. 

3.  In December 2006 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for use of marijuana which was discovered as a result of a urinalysis test on 6 December 2006 and for possession and consumption of an alcoholic beverage while under the age of 21.  In a statement the applicant admitted to using marijuana on or about 1 December 2006 after drinking with friends near Satellite Beach, Florida.  The applicant’s punishment included reduction to pay grade (PV1)/E-1, forfeiture, and 45 days of extra duty and restriction.

4.  On 6 March 2007 the applicant acknowledged receipt of a proposed separation action under the provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of his 6 December 2006 positive urinalysis test.  His commander informed him that he intended to 


recommend the applicant receive a general discharge.  On 17 April 2007, after 
consulting with counsel, the applicant signed his “Election of Rights” statement.  
In that statement the applicant indicated that he would submit a statement in his own behalf and that he understood that he would “be ineligible for enlistment in the United States Army for a period of 2 years after discharge.”

5.  In his self-authored statement, the applicant acknowledged that he had made a mistake but believed that it would be in his best interest to remain in the Army and fulfill his enlistment.  He stated he felt he was still more than capable of being a good Ranger and an even better Soldier.  The applicant’s team leader, a corporal, supported the applicant’s request to remain in the Army.  The applicant’s parents also submitted a statement of support.

6.  On 18 April 2007, the appropriate separation authority approved the discharge and directed the applicant be discharged and that he receive a general under honorable conditions discharge.

7.  The applicant was discharged on 4 May 2007 under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for misconduct-drug abuse.  He had 1 year, 8 months, and 16 days of active Federal service.  Item 26 (separation code) on his 2007 DD Form 214 reflects “JKK” and item 27 (reentry code) reflects “4.”  Item 28 (Narrative Reason for Separation) of this document has an entry of "Misconduct (Drug Abuse)."

8.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) reflects “None//nothing follows” and item 14 (military education) reflects completion of airborne training in 2006.

9.  The statement, submitted by the applicant in support of his request, which was authored by his parents, notes the applicant’s accomplishments during his short time in the military.  They stated that their son does not have a drug problem and that on all subsequent random urinalysis tests he tested negative.  They noted that in spite of receiving an Article 15 and even after separation action was initiated, their son (the applicant) continued to Soldier on.  They stated that their son’s general discharge is evidence of discretion in the matter that at best should prevent him from returning to military service for a period of time but not forever.  They maintain he was never told he may be barred forever from returning to military service.  They state that his single mistake should not be one which follows him the rest of his natural life.


10.  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.  A discharge under other than honorable conditions is 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.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.

12.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation 601-210 states that an RE-4 applies to persons separated from last period of service with a non-waivable disqualification.  Paragraph 4-25 of that regulation states that an individual with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse during their last period of service are disqualified from enlistment and the disqualification is nonwaivable.

13.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code of JKK denotes involuntary discharge by reason of misconduct (Drug Abuse).

14.  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 RE-4.

15.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents and entries, which are to be made in Item 14 (Military Education) of the DD Form 214.  The instructions are as follows:  "List in-service training courses; title, number of weeks, year successfully completed during this period of service.  This information is to assist the member after separation in job placement and counseling; therefore, training courses for combat skills will not be listed.”

16.  Army Regulation 600-8-22 (Military Awards) states the following:

	a.  the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  This regulation states, in pertinent part, that effective 1 August 
1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.

	b.  the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995, and 11 September 2001 to a date to be determined.  

	c.  the Global War on Terrorism Service Medal (GWOTSM) is authorized for award to members of the Armed Forces of the United States who have participated in the Global War on Terrorism operations outside of the designated areas of eligibility, on or after 11 September 2001 to a future date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized, or National Guard Soldiers activated on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM.

	d.  individuals authorized the Iraq Campaign Medal (ICM) must have served in direct support of Operation Iraqi Freedom.  The area of eligibility encompasses all land area of the country of Iraq, and the contiguous water area out to
12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of operations.  Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive days or for 60 non-consecutive days.

17.  Army Human Resources Command Military Personnel (MILPER) Message Number 08-123 provides the guidance and criteria, applicability and standards on awarding and wear of service stars on the ICM.  It states, in pertinent part, that one bronze service star will be worn on the ICM for one or more days of participation in each designated campaign phase.  Approved designated ICM campaign phases and inclusive periods are listed below:

Liberation of Iraq/19 Mar 2003 - 1 May 2003 
Transition of Iraq/2 May 2003 - 28 Jun 2004 
Iraq Governance/29 Jun 2004 - 15 Dec 2005 
National Resolution/16 Dec 2005 – Date to be determined



DISCUSSION AND CONCLUSIONS:

1.  The fact that the applicant wishes to again serve in the military has been 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.

2.  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 misconduct 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.

3.  While other separations for misconduct may permit an individual to seek enlistment, separation as a result of drug abuse is specifically cited as a nonwaivable disqualification.  Hence, his RE code is correctly reflected as RE-4.  The fact that he may have received a general discharge does not negate the underlying reason for his administrative separation.

4.  The applicant's RE and SPD codes are 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 misconduct by abusing illegal drugs, and there is no basis upon which to change this reason.  

5.  It appears the applicant was erroneously told in his waiver statement that he would be ineligible to apply for enlistment for 2 years after discharge.  However, even if he had been given an RE code that would have allowed for this, this statement did not state that he would be accepted for enlistment after 2 years.  That decision has to be made at the time of application for enlistment based on the needs of the Army and other governing laws and regulations, and the current governing regulation states that  an individual last discharged for drug or alcohol abuse has a nonwiavable disqualification.

6.  The applicant’s completion of airborne training is reflected in item 14 on his 2007 DD Form 214.  One Station Unit Training and the Ranger Indoctrination Program would be considered training courses designed to enhance combat skills and as such, would not be reflected on the DD Form 214.

7.  The evidence of record does, however, show that the applicant is entitled to the Army Service Ribbon, National Defense Service Medal, Global War on Terrorism Service Medal, and the Iraq Campaign Medal with one bronze service star.  His records should be corrected accordingly.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he is entitled to the Army Service Ribbon, National Defense Service Medal, Global War on Terrorism Service Medal, and the Iraq Campaign Medal with one bronze service star.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE or SPD codes or adding additional training to item 14 on his DD Form 214.



      ________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)                                         AR20080008120



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ABCMR Record of Proceedings (cont)                                         AR20080008120



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