IN THE CASE OF:	  

		BOARD DATE:	  2 June 2009

		DOCKET NUMBER:  AR20090002051 


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 separation code, reentry eligibility (RE) code, and narrative reason for separation be changed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that he would like his RE code changed to 2 so he can enlist.  He contends that he failed one urinalysis toward the end of his 
3-year and 23-week enlistment, that he received an Article 15, and that he was discharged under chapter 14, paragraph 12c.  He points out that during his service he never received any other Article 15s.

3.  The applicant provides orders for the Army Commendation Medal and a copy of his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 July 2005 and trained as a wheeled vehicle mechanic.  He served in Iraq from 27 August 2006 to 13 November 2007.

2.  On 1 July 2008, nonjudicial punishment was imposed against the applicant for using marijuana.  His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty, restriction, and an oral reprimand.

3.  On 15 September 2008, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant's nonjudicial punishment for using marijuana.

4.  On 16 September 2008, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a discharge/
character of service of less than honorable were issued, and elected not to submit a statement on his own behalf.

5.  On 24 September 2008, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

6.  Accordingly, the applicant was discharged on 1 October 2008 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had served a total of 3 years, 2 months, and 25 days of creditable active service.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C."  Item 26 (Separation Code) of his DD Form 214 shows the entry, "JKQ."  Item 27 (Reentry Code) of his DD Form 214 shows the entry, "3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry, "MISCONDUCT, (SERIOUS OFFENSE)."

8.  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 (military or civilian 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.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JKQ" is "Misconduct (Serious Offense)" and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

10.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

11.  RE-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.

12.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

13.  RE-2 was rescinded effective 28 March 1995.

14.  The SPD Code/RE Code Cross Reference Table, dated 15 June 2006, shows that when the SPD is "JKQ," then an RE code of 3 will be given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, his separation code, RE code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.

2.  The applicant's current RE code is a waivable code.  Therefore, the applicant may still apply for service in the U.S. Army and request the appropriate waiver.

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)                                         AR20090002051



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ABCMR Record of Proceedings (cont)                                         AR20090002051



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