BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090005472 


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 of "4" be changed to "2" or “3.”

2.  The applicant states, in effect, that after he returned from his tour in Iraq he and his wife divorced.  He states he suffered from emotional duress due to his combat experiences as well as from the divorce.  He admits that in a moment of weakness, he turned to drugs to ease his emotional pain.  He then sought assistance from the post Army Substance Abuse Program.  When his chain of command found out, they started to administer random urinalysis tests.  He was processed out of the Army for a positive urinalysis conducted by his unit.  He states he has been clean and sober since February 2004 and would like to enlist in the U.S. Army so he can proudly serve his country. 

3.  The applicant provides a personal statement as supporting evidence with his application.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military personnel record shows that he enlisted in the Regular Army on 8 June 1999 for a 3-year period of service.  He completed basic combat and advanced individual training.  He was awarded military occupational specialty 45B (Small Arms Repairer).  He reenlisted on 27 August 2001 for a second 3-year period of active duty service. 

3.  On 27 January 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongful use of a controlled substance, cocaine.  He was reduced to private/pay grade E-1, a forfeiture of $793 pay which was suspended, and extra duty and restriction for 
45 days. 

4.  On 17 February 2004, the applicant participated in a random urinalysis test.

5.  On 4 March 2004, the applicant received written notification from his chain of command that he had tested positive during a urinalysis test. The test results show that he tested positive for cocaine, a controlled substance.  The counseling statement the applicant received shows that he tested positive while enrolled in the post Army Substance Abuse Program and that the urinalysis test results provided to the unit were from the rehabilitative client test.  He was advised to continue in the post Drug and Alcohol Substance Abuse Program and to see the post legal defense counsel.  The applicant acknowledged the formal counseling and agreed with the information presented by his chain of command. 

6.  On 23 March 2004, court-martial charges were preferred against the applicant for wrongful use of a controlled substance (cocaine between on or about 12 February 2004 and 17 February 2004).

7.  On 30 March 2004, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant then voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser-included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He elected not to submit statements on his own behalf and acknowledged that he received a copy of his request for discharge to include all enclosures.

9.  On 30 March 2004, the applicant's company and intermediate commanders recommended that the applicant be discharged in lieu of trial by court-martial.  

10.  On 6 April 2004, the separation authority approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 by reason of conduct triable by court-martial, directed that the applicant be issued an under other than honorable conditions discharge and reduced to the lowest enlisted rank, private/pay grade E-1.  

11.  Accordingly, the applicant was discharged on 16 April 2004.  The DD Form 214 he was issued confirms he was discharged with a character of service of under other than honorable conditions.  Item 12c of this form further shows that he completed a total of 4 years, 10 months, and 9 days of creditable active military service.  Item 26 (Separation Code) shows the entry "KFS," and item 
27 (Reentry Code) shows the entry "4."

12.  On 19 August 2005, the Army Discharge Review Board (ADRB) granted the applicant relief as he was enrolled in the post Army Substance Abuse Program and the chain of command used a positive urinalysis during his enrollment period to initiate separation action which violated the applicant’s confidentiality.  The ADRB determined that the applicant's discharge was improper as to characterization and directed that the characterization be changed to honorable, and that the reason was improper and changed the reason to Secretarial Authority under the provisions of chapter 5 of Army Regulation 
635-200 (Enlisted Separations from Active Duty).  The ADRB further restored the applicant’s rank to private first class/pay grade E-3, but the ADRB specifically stated that it did not direct a change to the applicant’s RE code.

13.  Army Regulation 600-85 (The Army Substance Abuse Program) states, in pertinent part, that the confidentiality and disclosure of records of the identity, diagnosis, prognosis, prevention or rehabilitation of any client maintained in connection with a Federal substance abuse program is controlled by Title 42 U.S. Code section 290dd-2 and Title 42, CFR Part 2.  Disclosure of such records is prohibited except under certain circumstances. 
14.  Army Regulation 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.  

15.  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 USAR.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment processing procedure.  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from their last period of active service with a nonwaivable disqualification.

16.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states, in pertinent part, that the SPD code “KFS” is the appropriate code to assign to Soldiers who request discharge in lieu of trial by court-martial.  For Soldiers who receive a discharge upgrade based on Secretarial Authority, the applicable SPD code is “KFF”.

17.  The SPD/RE Code Cross-Reference Table, dated 1 December 2000, shows the appropriate RE code for the SPD code of "KFS" is RE-4 and that SPD the code of “KFF” is to be determined by a Headquarters, Department of the Army directive authorizing the separation program, or a specific separation will provide the RE code.  

18.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded to a more favorable code so he can enlist.
   
2.  The evidence of record shows that the applicant’s characterization of service was upgraded to that of honorable, that the reason and authority for his discharge was changed to Secretarial Authority, and that his grade was restored to private first class/pay grade E-3.  The ADRB within its jurisdiction has the authority to change RE codes.  However, the ADRB did not change the RE code on the applicant’s DD Form 214 with a separation date of 16 April 2004.  

3.  The RE code was initially assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court-martial, specifically use of a controlled substance—cocaine.  The underlying reason for his discharge was his use of illegal drugs.  Even though the applicant was in the post Army Substance Abuse Program as a self-referred substance abuser, the fact remains he admitted to using an illegal substance.  Therefore, the appropriate RE code is RE-4.

4.  The ADRB determined that the applicant's RE code should not be changed when the applicant's discharge was upgraded.  Since Army regulations provide for the separation authority to determine what RE code to assign when it approves a discharge under Secretarial Authority, the retention of the applicant's RE-4 was proper and just and the applicant has not provided any reason to change it.

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)                                         AR20090005472



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ABCMR Record of Proceedings (cont)                                         AR20090005472



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