IN THE CASE OF:	  

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  AR20090003640 


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 improper because someone other than a General Court-Martial authority approved it and that the Army Discharge Review board (ADRB) recognized the error and upgraded his character of service to fully honorable.  

3.  The applicant provides a copy of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 September 2005; a copy of his Honorable Discharge Certificate, dated 19 September 2005; and a copy of the ADRB Case Report and Directive, dated 11 July 2007, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years and 16 weeks on 25 August 2004.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  He was assigned to Battery A, 2nd Battalion, 77th Field Artillery Regiment, Fort Hood, TX, and attained the rank/grade of private (PV2)/E-2. 

2.  On 2 February 2005, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine.

3.  On 11 April 2005, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  His punishment consisted of a reduction to PV1/E-1, a forfeiture of $617.00 pay per month for 2 months, 45 days of restriction, and 45 days of extra duty.  A copy of his Article 15 is not available for review with this case. 

4.  On 5 May 2005, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on or about 5 June 2005.  He returned to his unit on 14 June 2005.  

5.  On 27 July 2005, 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 (AR) 635-200 (Personnel Separations), for misconduct citing his wrongful use of cocaine and his AWOL. 

6.  On 28 July 2005, 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.

7.  On 28 July 2005, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of AR 635-200 for misconduct.  He recommended an under other than honorable conditions character of service.

8.  On 2 August 2005, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of AR 635-200 with an under other than honorable conditions discharge. 

9.  On an unknown date in 2005, the applicant’s brigade commander approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct and directed the applicant be furnished a general, under honorable conditions discharge.  On 19 September 2005, 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 a total of 11 months and 16 days 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.”  

10.  On 11 July 2007, the ADRB granted the applicant relief in the form of an upgrade of the characterization of his service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  However, the ADRB’s action did not entail a change to the RE code.  

11.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) shows the entry "Honorable" and Item 28 (Narrative Reason for Separation) shows the entry "Secretarial Authority."  Item 26 of this DD Form 214 shows the entry "JFF" and item 27 his Reentry Code as "RE-4."

12.  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.

13.  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.


14.  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. 

15.  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" and SPD/RE code of "JFF" has a corresponding RE code of "TBD" (to be determined).  When the table specifies "TBD" the Headquarters, Department of the Army (HQDA) directive authorizing the separation program, or specific separation will provide the RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 code should be upgraded to a favorable code that would allow him to reenter military service. 

2.  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 AR 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct” and the appropriate RE code associated with this discharge is RE-4.

3.  The ADRB determined that the applicant's discharge was improper and upgraded it to honorable under the Secretarial Authority.  The ADRB also considered the applicant's RE code when it directed its upgrade action and determined that the RE code should not be changed.

4.  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.

5.  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.




      _______ _   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)                                         AR20090003640



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ABCMR Record of Proceedings (cont)                                         AR20090003640



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