IN THE CASE OF:
BOARD DATE: 6 October 2009
DOCKET NUMBER: AR20090006687
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, reconsideration of his previous request to upgrade the characterization of his November 2005 discharge and to change his reentry eligibility (RE) code from RE-4 to a code that will permit him to return to military service.
2. The applicant states, in effect, that he tested positive for marijuana and was punished under Article 15 of the Uniform Code of Military Justice (UCMJ). He states after his separation action was initiated he attended a mandatory Army Substance Abuse class and was told he did not have a "drug problem." He notes that he subsequently called his company commander who told him "the Colonel" was affording him a second chance. However, he states that shortly thereafter he was told by his drill sergeant to pack his gear, he was being sent home.
3. The applicant states he was unable to achieve high standards and/or accomplishments because he associated himself with friends who were "probably not in the right state of mind" and ended up smoking marijuana. He states he knew it was wrong and has regretted it every minute. The applicant states that since his discharge he has demonstrated discipline and personal courage by "staying clean and by not associating with the type of people" he had previously. He notes that he has been living with his brother, a staff sergeant in the Army, who has instilled in him the true meaning of being a Soldier. He states that he has recently been laid off from his manufacturing job in Texas but while employed had risen to being a shift team leader in less than 6 months.
4. The applicant asks that the Board consider and approve a waiver for him to be able to enlist in the Army again.
5. The applicant provides a statement from his brother, an Army National Guard staff sergeant, and a statement from a former Marine who support his petition to be able to return to military service.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070018996 on 3 April 2008.
2. While the applicant's argument for upgrading the character of his discharge and his RE code is essentially the same as his original application to the Board, the two supporting statements are evidence not previously seen by the Board. As such, reconsideration is appropriate.
3. The applicant served on active duty in the Regular Army (RA) for 9 months and 9 days between February 2005 and November 2005. He was discharged on 30 November 2005 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2) for misconduct-abuse of illegal drugs after testing positive for marijuana in August 2005 and being punished under Article 15 of the UCMJ.
4. A further review of the applicant's official military personnel file (OMPF) indicates that as part of his February 2005 enlistment action, he admitted to "experimental use" of drugs on three occasions between June and December 2004. He also noted that he had paid a fine of $100.00 and spent 1 day in jail following an August 2004 charge of disorderly conduct by a person under the influence of alcohol or drugs in San Bernardino, California.
5. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) which he was issued at the time of his November 2005 discharge reflects a separation program designator (SPD) code of "JKK" and an RE code of "4."
6. The statements submitted by the applicant in support of his current request to the Board were both dated in January 2009. The applicant's brother, a staff sergeant in the Texas Army National Guard, noted the applicant associated himself with other trainees who had no desire to be in the military and had no idea what it meant to live by the Army's values. He states that his brother [the applicant] had stayed away from illegal substances and found a good job that he kept until he was recently laid off. He states he knows his brother can bring good things to the Army and would make a great Soldier if given another chance.
7. The second statement, authored by the former Marine, indicates he worked with the applicant for approximately 18 months. He states the applicant showed great aptitude for work and dedication and it came as no surprise when he (the applicant) was promoted to a team leader. He states the applicant is a well-rounded person who is more than willing to help. He states the applicant has become "what all people should hope to have, a good friend." He notes the applicant has a lot to offer our country and all he needs is that one chance.
8. As noted in the Board's original proceedings, generally a discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), results in a discharge under other than honorable conditions. In the applicant's case, he received a general discharge.
9. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes.
10. Table 3-1 (U.S. Army Reentry Eligibility Codes) of Army Regulation 601-210 states that an RE-4 applies to persons separated from their last period of service with a non-waivable disqualification. Paragraph 4-25 of that regulation states that an individual with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse during his or her last period of service is disqualified from enlistment and the disqualification is nonwaivable.
11. Army Regulation 635-5-1 (Separation Program Designator Codes),
Table 2-3, states that the SPD code of JKK denotes involuntary discharge by reason of misconduct (drug abuse).
12. The Army Human Resources Command publishes a cross-reference table of SPD and RE codes. This cross-reference table shows that an SPD code of JKK is assigned an RE code of RE-4.
DISCUSSION AND CONCLUSIONS:
1. While the applicant implies that he associated with the wrong kinds of people resulting in his use of marijuana for which he was punished, the evidence of record shows that not only did he use drugs while undergoing training, he used them on at least three occasions within months of enlisting and he had previously been charged with an offense involving either drugs or alcohol. While the applicant indicates he did not have a drug problem, documents in his OMPF suggest otherwise.
2. The fact that the applicant may now be drug free and that he and his supporters state he has, in effect, turned his life around and wishes to again serve in the military has been noted. However, 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.
3. It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct by abusing illegal drugs. The applicant did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process. In fact, his receipt of a general discharge rather than a discharge under other than honorable conditions may have been his chain of command's way of acknowledging his single drug offense while in the military and as such were more lenient in his discharge processing than they could have been.
4. While other separations for misconduct may permit an individual to seek enlistment, separation as a result of drug abuse is specifically cited as a nonwaivable disqualification. Hence, his RE code is correctly reflected as RE-4. The fact that he may have received a general discharge does not negate the underlying reason for his administrative separation.
5. The applicant's RE and SPD codes are based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed. His narrative reason for discharge was based on his discharge for misconduct by abusing illegal drugs and there is no basis upon which to change this reason.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070018996, dated 3 April 2008.
____________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) AR2002081701
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ABCMR Record of Proceedings (cont) AR20090006687
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