IN THE CASE OF:	  

		BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090011054 


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, change in his Reentry Eligibility (RE) code to an RE-1, RE-3A, or an RE code that is waivable so he can reenter the Army.

2.  The applicant states that if his RE code is upgraded he will be able to regain his position as an outstanding Soldier.  He also states that this experience has affected his life as a Soldier and a civilian.  He further states that his discharge was upgraded to fully honorable, that he kept his criminal record clean, and that he has lived a drug-free lifestyle since this incident.  He finally states that the issuance of an RE code of 4 was unjust because during the period of the incident he got a new commander who was unaware of his character as a person and performance as a Soldier and he enforced a "zero tolerance policy" which resulted in him being discharged and receiving an RE code of 4.

3.  The applicant provides a self-authored statement and a copy of a memorandum from the Army Discharge Review Board (ADRB) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) on
30 May 2001.  He continuously served on active duty and he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 August 2005.

2.  On 22 June 2006, the applicant tested positive during a unit urinalysis for wrongfully using Ectasy (MDMA), a controlled substance. 
3.  On 3 August 2006, a mental status evaluation was conducted on the  applicant who was being considered for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14, because of misconduct.  After evaluating the Soldier, the Chief, Psychology Service, cleared the applicant for any administrative action deemed appropriate by the command.

4.  On 21 August 2006, the applicant was administered a field grade Article 15 under the Uniform Code of Military Justice (UCMJ) for wrongfully using methamphetamine (MDMA, Ecstasy) between on or about 15 June 2006 and
22 June 2006.  The applicant did not demand trial by court-martial, he requested a closed hearing, he requested a person to speak in his behalf, and he submitted matters in defense, mitigation, and/or extenuation.  Having considered the above, the battalion commander imposed the following punishment:  reduction to the rank/grade of sergeant (SGT)/E-5, forfeiture of $1,062.00 per month for two months, and 45 days of extra duty and restriction (suspended, to be automatically remitted if not vacated before 28 September 2006).

5.  On 7 November 2006, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14-12c (commission of a serious offense) for misconduct – use of illegal substances.  The commander recommended that the applicant be retained in the military; however, if discharged, that he receive a general, under honorable conditions discharge.

6.  On 15 December 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14-12c for commission of a serious offense and directed that the applicant receive a General, Under Honorable Conditions Discharge Certificate.

7.  The DD Form 214 he was issued at the time confirms he had completed a total 5 years, 7 months, and 6 days of active military service.  The DD Form 214 also shows that his character of service was general, under honorable conditions; the separation authority was Army Regulation 635-200, paragraph 14-12c (2); the separation code was "JKK"; his RE code was RE-4; and the narrative reason for his separation was "misconduct (drug abuse)."

8.  On 27 June 2008, the applicant petitioned the ADRB for an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.  
On 3 April 2009, after a careful review of the applicant's military records and the issue submitted with his application, the ADRB, by a majority, voted to upgrade the applicant’s general, under honorable conditions discharge to a fully honorable 
discharge.  As a result, the ADRB directed the issuance of a new DD Form 214 with a change in his character of service to honorable.  However, the ADRB also directed no change to the separation authority, separation code, reentry code, or narrative reason for separation. 

9.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for 
separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general, under honorable conditions discharge or an honorable discharge may be granted.

10.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  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.

	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 time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-3A applies to Soldiers who did not meet reentry criteria at time of separation.  They are ineligible unless a waiver is granted.  The use of this RE code was discontinued in 1995.

	d.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

11.  Army Regulation 601-210 also provides, in pertinent part, that RE codes may only be changed if they are determined to be administratively incorrect. 

12. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directives) for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of JKK is the appropriate code to assign Soldiers separated under the provisions of paragraph 14-12c (2), Army Regulation 635-200, for commission of a serious offense - abuse of illegal drugs.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign Soldiers separated with an SPD code of JKK.  SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  RE codes are used to determine whether or not an individual may reenlist or enlist in a military service at a later time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his discharge for misconduct - drug abuse.  Notwithstanding the ADRB's upgrade of his character of service to honorable, there is no evidence of record and the applicant did not provide any evidence as a basis to warrant a change his reason for separation.

2.  An SPD code of "JKK" applies to persons who are administratively discharged with the commission of a serious offense - abuse of illegal drugs under the provisions of Army Regulation 635-200, chapter 14-12c (2).  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals discharged for misconduct - drug abuse.  Therefore, there is no basis for granting the applicant's requested relief in this case.

3.  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)                                         AR20090011054



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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