IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090001433 


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 his reentry eligibility (RE) code be upgraded from 
RE-4 to a more favorable code so he may reenter military service.

2.  The applicant states that he made a mistake and would like a second chance to prove that he was born to serve and complete his obligation to his country.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army for a period of 3 years on 16 September 2004.  He completed basic combat and advanced individual training and was awarded military occupational specialty 52C (Utility Equipment Repairman).  He also executed a 5-year reenlistment on 20 March 2006 and attained the rank/grade of specialist/E-4.

2.  On 21 August 2007, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

3.  On 29 November 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana between the dates of 22 July 2007 and 21 August 2007.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $864.00 pay per month for 2 months (suspended until 28 May 2008), 45 days of restriction (suspended until 28 May 2008), and 45 days of extra duty.

4.  On 25 February 2008, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c(2) of Army Regulation 635-200 (Personnel Separations) for misconduct, abuse of illegal drugs.

5.  On 27 February 2008, the applicant acknowledged receipt of the separation memorandum, 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.

6.  On 27 February 2008, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12c(2) of Army Regulation 635-200 for misconduct, abuse of illegal drugs.  He recommended an under honorable conditions (general) character of service.

7.  On 4 March 2008, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12c(2) of Army Regulation 635-200 with a general under honorable conditions discharge.  He also recommended a suspension of the applicant’s discharge for a period of 180 days.

8.  On 7 March 2008, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct – abuse of illegal drugs – and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 21 March 2008.  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 3 years, 6 months, and 6 days of creditable active military service.  Item 26 (Separation Code) of this DD Form 214 shows the entry "JKK" and item 27 (Reentry Code) shows the entry "4."

9.  Army Regulation 635-200 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 regulation.

10.  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.  An 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.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the military services to assist in the collection and analysis of separation data.  The "JKK" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct.

14.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD/RE code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a more favorable code that would allow him to reenter military service.
2.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct, commission of a serious offense (drug abuse).  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct – abuse of illegal drugs.  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.

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)                                         AR20090001433



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ABCMR Record of Proceedings (cont)                                         AR20090001433



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