IN THE CASE OF:	  

		BOARD DATE:	  20 August 2009

		DOCKET NUMBER:  AR20090003581 


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 reentry eligibility (RE) code be upgraded.

2.  The applicant states the Army Discharge Review Board (ADRB) determined that his characterization of service was too harsh and upgraded his discharge.  He believes that the RE code is also unduly harsh and would like to have it changed for the purpose of reenlistment.

3.  The applicant provides a personal statement, a statement from his mother, and copies of his original and upgraded DD Forms 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Regular Army from 13 January 2001 through 16 November 2005, including service in Iraq from 11 January 2004 through 23 February 2005.

2.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 2 June 2005 for illegal use of ecstasy.  His punishment included reduction to pay grade E-1.

3.  On 26 September 2005, the applicant's unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c for commission of serious offenses.  The reasons cited were:

	a.  unlawful possession of a pistol [and ammunition];

	b.  assault on a fellow Soldier (the investigation reports indicate the applicant used a loaded pistol in the assault);

	c.  distribution of alcoholic beverages to a minor;

	d.  wrongful use of controlled substances (Marijuana, Ecstasy, Cocaine, Amphetamines, Methamphetamines) on diverse occasions between 8 April 2005 and 19 September 2005; and 

	e.  disrespect toward a non-commissioned.

4.  On 28 September 2005, after consulting with counsel, the applicant  voluntarily waived consideration of his case by an administrative separation board and a personal appearance before such board.  He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that a discharge under other than honorable conditions would make him ineligible for many or all benefits as a veteran under both Federal and State.  

5.  The discharge authority approved the separation and directed the applicant be discharged under other than honorable conditions.

6.  The applicant was discharged on 16 November 2005 under Army Regulation 635-200, paragraph 14-12c.  The DD Form 214 shows his service was considered to be under other than honorable conditions and he was given a Separation Program Designator (SPD) code of JKQ (Commission of a Serious Offence) and an RE-3 code.

7.  The ADRB granted the applicant's request for an upgrade of his characterization of service but did not change either his reason for separation or RE code. 

8.  In his personal statement the applicant justifies his misconduct by stating he started having problems following the death of his best friend in Iraq.  He started drinking and using drugs to cope.

9.  His mother states the only thing her son wanted was to be an infantryman; he overcame all obstacles to get to this goal.  She recognizes that her son made mistakes but states that he has matured greatly since his discharge and she continues to support his efforts to serve.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, chapter 14c mandates an SPD of JKQ.

11.  The SPD/RE Code Cross-Reference Table indicates an SPD of JKQ requires an RE code of 3.

12.  Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an RE code of "3" can normally reenlist but will require a waiver to be processed.  Individuals with an Army RE code of "4" are normally not eligible to reenlist in the Army, nor join another service.  

13.  The Manual for Courts-Martial states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the ADRB determined that his characterization of service was too harsh and upgraded his discharge.  He believes that the RE code is also unduly harsh and would like to have it changed for the purpose of reenlistment.

2.  An RE code is directly tied to the reason for separation.  Without changing the reason for separation it is not appropriate to change the RE code.

3.  The applicant was discharged for commission of several serious offenses over a period of five months.  In the absence of evidence that at the time of the discharge or of the behavior that led to the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems as to be unable to tell right from wrong and adhere to the right, his rationale for committing the offenses that led to his discharge is invalid.  

4.  The applicant can apply for reenlistment by requesting a waiver of his RE-3 code.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The reason for separation is appropriate considering all the facts of the case.
6.  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.




      _______ _   _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)                                         AR20090003581





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ABCMR Record of Proceedings (cont)                                         AR20090003581



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