IN THE CASE OF:	    

		BOARD DATE:	         23 July 2009   

		DOCKET NUMBER:  AR20090006583 


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 eligibility (RE) code
from RE-4 to RE-3.  

2.  The applicant states, in effect, he believes the code of RE-4 he received is unjust because it does not allow him to reenter the Armed Forces as he desires.

3.  The applicant provides a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 214 Worksheet 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 29 August 2002.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).

2.  The applicant's Official Military Personnel File (OMPF) contains a document titled "New Drug Testing Results," which identifies the applicant by his social security number (SSN) and shows that, on 26 September 2006, he tested positive for Tetrahydrocannabinol (THC) which is also known as marijuana. 

3.  On 12 December 2006, the applicant accepted non-judicial (NJP) punishment under the provisions of Article 15 of the Uniform Code Military Justice (UCMJ) for wrongful use of marijuana between 27 August and 26 September 2006.
4.  On 22 December 2007, a Report to Suspend Favorable Personnel Actions (FLAG) was initiated against the applicant.

5.  On 30 January 2007, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-12c (2),
Army Regulation 635-200 with a general discharge (GD), based on the wrongful use of marijuana, a controlled substance.  

6.  On 30 January 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 waived the following rights available to him; consideration of his case by an administrative separation board, personal appearance before an administrative separation board, and representation by military or civilian counsel.  He also elected not to make a statement in his own behalf.

7.  On 30 January 2007, the battalion commander recommended approval with the issuance of a GD.

8.  On 1 February 2007, the separation authority directed that the applicant be separated under the provisions of paragraph 14-12c(2), Army Regulation 
635-200 with the issuance of a GD.   

9.  On 21 March 2007, the applicant was separated under the provisions of paragraph 14-12c(2), Army Regulation 635-200 with a GD, due to “Misconduct (Drug Abuse).”  He had completed 4 years, 5 months, and 18 days of creditable active military service.  He was assigned a Separation Program Designator (SPD) code of JKK and an RE code of RE-4.

10.  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.  

11.  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.  Chapter 3 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.

12.  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 of RE-4 he was assigned is unjust because it does not allow him to reenter the military was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant committed the offense of wrongful use of a controlled substance, as evidenced by his positive test for marijuana.  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 of JKK and an RE code of RE-4 are the proper codes to assign members separating under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct based on drug abuse.  As a result, the applicant’s assigned RE and SPD codes are appropriate based on the authority and reason for separation.  Absent any evidence of an error or injustice related to the applicant's discharge processing and/or 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.






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)                                         AR20090006583



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ABCMR Record of Proceedings (cont)                                         AR20090006583



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