IN THE CASE OF:
BOARD DATE: 27 MAY 2009
DOCKET NUMBER: AR20090002815
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 the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from RE-4.
2. The applicant states he is unable to enlist because of his RE code. He states he was told his narrative reason for separation would permit him to enlist after
2 years.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant entered the Regular Army (RA) on 15 May 2003 on a 4-year enlistment. Trained as a Combat Engineer in military occupational specialty (MOS) 21B, he completed the Basic Airborne Course and was assigned to the 37th Combat Engineer Group (Airborne), Fort Bragg, NC.
2. On 4 August 2005, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana on or between 8 June 2005 and 8 July 2005.
3. The applicants commander notified him of his intent to initiate separation action under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations Active Duty Enlisted Administrative Separations) for misconduct -
commission of a serious offense (positive urinalysis for marijuana on 8 July 2005). The commander recommended a general discharge.
4. On 3 October 2005, the applicant consulted with legal counsel and was advised of the nature and impact of the proposed discharge action. He elected to submit a statement in his own behalf in which he apologized and asked for a second chance.
5. The discharge request was processed through the applicants chain of command to the approving authority. On an unknown date, the approving authority approved the applicants discharge and directed he be issued a general discharge.
6. On 18 November 2005, the applicant was separated with a general discharge under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct, abuse of illegal drugs. He was issued a separation program designator (SPD) code of JKK and an RE code of RE-4.
7. On 29 August 2006, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a change in characterization and reason for discharge. On 20 September 2007, the ADRB denied his request.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c contains the policy for the separation of personnel for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM). Abuse of illegal drugs is classified as serious misconduct.
9. 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 that regulation prescribes the basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE 1 and 2 permit immediate reenlistment if all other criteria are met. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for enlistment.
10. The SPD Codes/RE Code Cross Reference Table states that when the SPD code is JKK then an RE code of 4 will be given.
DISCUSSION AND CONCLUSIONS:
1. The applicant wants his RE code changed.
2. The applicant tested positive for marijuana use during an 8 July 2005 random urinalysis. He was processed for separation. During the separation process, the process and his rights were explained to him. He therefore knew, or should have known he would receive an RE-4 and that he would be ineligible to reenter the service again. He provides no evidence to show he was told he could reenlist after 2 years.
3. The applicants discharge proceedings were conducted in accordance with law and regulations. The RE code he was assigned is in accordance with the narrative reason and authority for his separation.
4. 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.
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.
________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) AR20090002815
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ABCMR Record of Proceedings (cont) AR20090002815
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