IN THE CASE OF:	  

		BOARD DATE: 	        14 June 2009

		DOCKET NUMBER:  AR20090004854 


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, in effect, a change of his reentry (RE) code from RE-4 to RE-3.  

2.  The applicant states, in effect, that the RE-4 code he received was too harsh. He claims he was a good Soldier who always did what was asked of him.  He never got in trouble and always volunteered for extra duties as they came available.  He also states that after attending a party, he tested positive for cocaine on a unit urinalysis test.  He claims the only explanation for the positive test would have been he was unknowingly drugged.  The applicant insists he was a dedicated warrior and now request his RE code be changed to allow him to serve again in the National Guard.  

3.  The applicant provides a self-authored statement in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he enlisted in the Regular Army (RA) and entered active duty 3 April 2006.  He was trained in, awarded, and served in military occupational specialty (MOS) 92F (Petroleum Supply Specialist).

2.  The applicant's Enlisted Record Brief (ERB) shows, in Section III (Service Data), that he entered the RA in the rank/grade of private/E-1 (PV1), was advanced to private/E-2 (PV2) on 21 September 2006, and that this is the highest rank he attained while serving on active duty.

3.  The applicant's Official Military Personnel File (OMPF) contains a United States Army Criminal Investigation Command (USACIDC) Report of Investigation (ROI), dated 31 January 2007.  This ROI established probable cause to believe the applicant committed the offense of wrongful use of a controlled substance when he tested positive for cocaine during a unit urinalysis.

4.  On 7 March 2007, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c,
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), based on the unit urinalysis that showed he tested positive for cocaine.  He also recommended the applicant receive a general, under honorable conditions discharge (GD).

5.  On 7 March 2007, the applicant acknowledged receipt of the proposed separation action.  He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights and elected not to make a statement in his own behalf.

6.  On 12 March 2007, the separation authority, upon the recommendation of the applicant’s chain of command, directed that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200, and that he receive a GD.  On 21 March 2007, the applicant was discharged accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was separated by reason of “Misconduct (Drug Abuse)” after completing 11 months and 19 days of creditable active military service.  It also shows that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JKK and an RE code of RE-4.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  

9.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  

10.  Chapter 3 of the same regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-4 applies to persons who are disqualified for continued Army service.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JKK is the appropriate code to assign to Soldiers who separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of Misconduct based on drug abuse.  The Department of the Army (DA) SPD/RE Code Cross Reference Table stipulates that Soldiers separated by reason of misconduct-drug abuse with the SPD code JKK will be assigned an RE-4 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the code RE-4 he received was too harsh and should be changed to the code RE-3 has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record the applicant committed the offense of wrongful use of a controlled substance, as evidenced by his testing positive for cocaine during a unit urinalysis.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

3.  Under the governing regulation, the SPD code JKK and an RE-4 code are the proper codes to assign members separating under the provisions of chapter 14, AR 635-200, by reason of misconduct based on drug abuse.  As a result, the RE-4 code assigned the applicant at discharge was and still is appropriate based on the authority and reason for his separation.  Absent any evidence of an error or injustice related to the assigned RE code, there is an insufficient evidentiary basis to support granting the requested relief.  

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 or that would support amendment of the original Board decision in this case.


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)                                         AR20090004854



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ABCMR Record of Proceedings (cont)                                         AR20090004854



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