IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001927 


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 changed from RE-4 to a more favorable code so he may reenter military service.

2.  The applicant states that his discharge was unjust because he had never been in trouble during his military career until he was discharged.  He adds that he did great things for the Army and would like an opportunity to do more.  He loves serving his country and would continue to do so for nothing.  He just wants to set a good example for kids and being in the Army is one of the best ways he knows how.  He further adds that since his discharge, he has attended school and obtained his insurance license.  He knows that what he did was wrong and he is simply asking for a second chance.

3.  The applicant provides a copy of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 20 May 2008; and copies of orders awarding him the Purple Heart, the Combat Infantryman Badge, the Driver/Mechanic Badge with Driver Bar (Wheel), the Army Commendation Medal, and the Army Achievement Medal, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 9 November 2004.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was assigned to 2nd Battalion, 29th Infantry Regiment, Fort Benning, GA, and attained the rank/grade of specialist (SPC)/E-4. 
2.  The applicant’s records also show he served in Iraq and was awarded the National Defense Service Medal, the Purple Heart, the Army Commendation Medal, the Army Achievement Medal, the Combat Infantryman badge, the Driver/Mechanic Badge with Driver Bar (Wheel), the Iraq Campaign Medal with bronze service star, and the Overseas Service Ribbon. 

3.  On 5 September 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully cohabit with a woman not his wife from about 10 April 2007 to about 2 August 2007 and making a false official statement to his company first sergeant on or about 2 August 2007.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $815.00 pay per month for 2 months (suspended for 6 months), 45 days of restriction (suspended for 6 months), and 45 days of extra duty. 

4.  On 11 February 2008, the applicant participated in a unit urinalysis and his urine sample tested positive for amphetamine and methamphetamine.

5.  On 12 March 2008, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for wrongfully using amphetamine and methamphetamine between on or about 11 January 2008 and on or about 11 February 2008.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $500.00 pay per month for 2 months (suspended for 6 months), and 45 days of extra duty.  

6.  On 21 April 2008, 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 citing his wrongful cohabitation and wrongful use of amphetamine and methamphetamine. 

7.  On 21 April 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.


8.  On 27 April 2008 (erroneously shown as 17 April 2008), the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct-abuse of illegal drugs.  He recommended an under honorable conditions (general) character of service.

9.  On 1 May 2008, 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. 

10.  On 7 May 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, under honorable conditions discharge.  On 20 May 2008, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed 3 years, 6 months, and 12 of creditable active military service and had 40 days of lost time.  Item 26 (Separation Code) of this form shows the entry “JKK” and item 27 (Reentry Code) shows the entry “4.”  

11.  On 23 July 2008, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of the characterization of his service to fully honorable.   However, the ADRB found the narrative reason for separation was proper and therefore remained the same.  Additionally, the ADRB’s decision did not entail a change to the RE code.  

12.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) of the reissued DD Form 214 shows the entry "Honorable," item 26 shows the entry "JKK," item 27 show his Reentry Code as "RE-4," and item 28 (Narrative Reason for Separation) shows the entry "Misconduct-Drug Abuse"  

13.  AR 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 regulation.

14.  AR 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.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (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 last period of service with a nonwaivable disqualification.

15.  AR 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (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 DOD 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 14-12(c) of AR 635-200 by reason of misconduct and the "JFF" SPD code is the correct code for Soldiers separating under Secretarial Authority. 

16.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 1 March 2001, 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 contention that his RE-4 code should be upgraded because he would like a second chance and the evidence he submitted, including his awards of the Purple Heart, the Combat Infantryman Badge, the Driver/Mechanic Badge with Driver Bar, the Army Commendation Medal, and the Army Achievement Medal, were carefully considered.  However, they are not sufficiently mitigating in granting him the requested relief.  

2.  Contrary to the applicant’s assertion that he had never been in trouble until his discharge, the evidence of record shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ six months prior to testing positive on the unit urinalysis.  

3.  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-abuse of illegal drugs.  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-Drug Abuse" and the appropriate RE code associated with this discharge is RE-4.

4.  The ADRB determined that the applicant's character of service was improper and upgraded it to honorable.  However, the ADRB also considered the applicant’s narrative reason for separation when it directed the upgrade action and determined that the narrative reason for separation was proper and equitable.  Again, the appropriate RE code associated with the applicant’s discharge remains RE-4.

5.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  

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)                                         AR20090001927



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ABCMR Record of Proceedings (cont)                                         AR20090001927



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