IN THE CASE OF:	  

		BOARD DATE: 	       30 July 2009

		DOCKET NUMBER:  AR20090001940 


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 RE [Reentry Eligibility] Code be changed from a 4 to a 3.

2.  The applicant states, in effect, that in addition to enjoying the training and camaraderie he experienced in the Army, he was proud of his accomplishments.
He also states that he was a good and honest Soldier and knew that he would be a great addition to the Army team.  The applicant continues that everything was going well for him until he returned home for holiday exodus and discovered that his father was seriously ill and unable to work or take care of himself.  He states that he was forced to choose the Army or to take care of his family and he chose the latter.  The applicant further states that someone told him the fastest way to get out of the Army was to take drugs and test positive on a urinalysis test.  He states that he obtained cocaine and intentionally ingested it the day prior to returning to duty.  The applicant concludes that his family's affairs are now back in order and he would like nothing more than an opportunity to reenter the Army and fulfill his duty to our country.

3.  The applicant provides a self-authored statement as documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the United States Army Reserve Delayed Entry Program (DEP) on 20 October 2007.  He was discharged from the DEP, enlisted in the Regular Army (RA), and entered active duty on 31 October 2007.  He completed basic combat training and began advanced individual training.  He was discharged from the Army prior to completion of advanced individual training on 4 March 2008.  The highest rank he attained during this period of active duty was the grade of private (PVT)/pay grade E-1.

2.  The applicant's unit commander notified him that he was initiating action to separate him under the provisions of paragraph 14-12c (Commission of a Serious Offense) of Army Regulation 635-200 (Personnel Separations) for abuse of illegal drugs.  The unit commander cited the applicant's positive urine test results from a urinalysis sample he rendered on 4 January 2008 as the basis for taking the action.  The applicant acknowledged receipt of this notification and the fact that he had been advised of his right to consult with counsel prior to making any election of rights on 20 February 2008.

3.  The applicant's chain of command unanimously recommended approval of the separation action and further recommended that the applicant's service be uncharacterized.

4.  On 27 February 2008, the separation authority approved the applicant's separation in accordance with the provisions of Army Regulation 635-200, paragraph 14-12c, due to commission of a serious offense and directed that his service be uncharacterized.

5.  Headquarters, United States Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Orders 059-1309, dated 28 February 2008, reassigned the applicant to the United States Army transition point for transition processing with a discharge date of 4 March 2008.

6.  Item 25 (Separation Authority) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon separation indicates he was separated under the provisions of paragraph 14-12c(2) (Misconduct - Drug Abuse) of Army Regulation 635-200.  It also shows that based on the authority and reason for discharge, he was assigned a Separation Program Designator (SPD) code of JKK in Item 26 (Separation Code) and an RE code of 4 in Item 27 (Reentry Code).

7.  Army Regulation 635-200 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 a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2) due to misconduct in the form of drug abuse.  The SPD/RE Code Cross Reference Table indicates that RE code 4 is the proper code to assign members separated with SPD code JKK.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE Code should be changed from 4 to 3 so he will be eligible to reenter the Army was carefully considered and found to lack merit.

2.  Evidence shows the applicant intentionally abused an illegal drug for the explicit purpose of being separated from the Army.

3.  Evidence of record shows the applicant was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), by reason of abuse of illegal drugs.  Evidence also shows the applicant was assigned the appropriate RE Code of 4 at the time of his discharge.  Army Regulation 601-210 provides that a RE Code 4 applies to persons separated from their last period of service with a nonwaivable disqualification and are ineligible for reentry.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgraded RE Code.
5.  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 any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090001940



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ABCMR Record of Proceedings (cont)                                         AR20090001940



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