IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090004381 


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 the Reenlistment Eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "4" to "3."

2.  The applicant states that he made an error in judgment while he was home on Christmas Exodus leave.  He also states that he completed the Army Substance Abuse Program prior to being discharged, he maintains a steady job, he has not violated the law, and he has changed his life.  He concludes by stating that he is physically qualified to join the military, but he needs his RE code changed to be considered for a waiver.

3.  The applicant provides a course completion certificate, DD Form 214, and a Report of Mental Status Evaluation.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the U.S. Army National Guard on 19 May 2007 and entered active duty on 21 November 2007.

2.  The applicant provided his Army Substance Abuse Program certificate that shows, on 12 February 2008, he satisfactorily completed the Alcohol and Drug Abuse Prevention Training Class.


3.  On 31 January 2008, nonjudicial punishment was imposed against the applicant for wrongful use of marijuana between 3 December 2007 and 
3 January 2008.  His punishment consisted of a forfeiture of $620.00, 45 days of restriction, and 45 days of extra duty.

4.  On 1 February 2008, the applicant underwent a mental status evaluation that psychiatrically cleared him for any administrative action deemed appropriate by his command.
 
5.  On 11 February 2008, the applicant’s unit commander notified him of the intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, commission of a serious offense (testing positive for marijuana).

6.  On 11 February 2008, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, the applicant elected to submit a statement on his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge.  He acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 12 February 2008, the separation authority approved the applicant’s recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority directed that the applicant be issued an Uncharacterized Discharge Certificate.

8.  The applicant's DD Form 214 shows he was discharged on 19 February 2008 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse) with uncharacterized service and returned to his Army National Guard unit.  Item 26 shows he was assigned a Separation Program Designator (SPD) code of "JKK" and item 27 shows his RE code as "4."  The applicant was credited with completing 2 months of active service.



9.  Army Regulation 635-200 (Active Duty Enlisted Administration Separations), sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

10.  Army Regulation 635-200 states in pertinent part, that entry-level status for Army National Guard (ARNG) Soldiers begins upon enlistment in the ARNG or United States Army Reserve.  For Soldiers ordered to Initial Active Duty for Training (IADT) for one continuous period, entry level status terminates 180 days after training begins.  For Soldiers ordered to IADT for the split or alternate training option the period terminates 90 days after beginning Phase II of advanced individual training (AIT).  Soldiers completing Phase I of basic training or basic combat training (BCT) remain in an entry-level status until 90 days after beginning Phase II. 

11.  Additionally, the regulation states, in pertinent part, that the character of service will be uncharacterized if processing is initiated while a Soldier is in entry-level status.

12.  Army Regulation 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 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, including RA RE codes.  An RE code of 1 permits immediate reenlistment if all other criteria are met.  An RE code of 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 reenlistment.

13.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  This regulation states, in pertinent part, that SPD code of "JKK" applies to persons discharged for misconduct (drug abuse).  

14.  The SPD Code/RE Code Cross Reference Table states that when the SPD is "JKK" then and RE code of 4 will be assigned.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that he made an error in judgment, that he maintains a job, that he has turned his life around, and that he desires to reenter the military.  

2.  The available evidence shows the applicant was separated due to drug abuse. Therefore, he was assigned an RE code of 4 which is consistent with the reason for separation.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

3.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and the both the narrative reason for separation and the characterization of service are appropriate considering all the facts of the case.

4.  Absent any evidence of error or injustice in the discharge process, the assigned RE code is proper and equitable based on the authority and reason for discharge.  As a result, there is an insufficient evidentiary basis to support a change of the RE code.  

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)                                         AR20090004381



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ABCMR Record of Proceedings (cont)                                         AR20090004381



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