BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011318 


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 to his reentry (RE) code.

2.  The applicant states, in effect, that he is requesting a change to the RE-4 code he received to an RE-1 code so that he can serve his country after he has grown up and matured.  He claims that he has served his punishment for the mistake he made at home, not on base, over the Christmas break.  He claims he was an excellent Soldier, stayed out of trouble and ranked second in his advanced individual training class.  He knows he was wrong and he was only 18 years of age.  He believes that in the years to come he would like to again serve, but would like to do it as a police officer, and with an RE-4 that is impossible.  He claims he is an excellent shooter and is looking into SWAT team and special teams in their district, but he cannot do it with an RE-4 code.  He knows he was wrong and would like to make it right.

3.  The applicant provides no additional documentary evidence in support of the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) on
23 September 2008.  He was assigned to Fort Jackson, SC to attend basic combat and advanced individual training in military occupational specialty (MOS) 42A (Human Resources Specialist).

2.  On 3 January 2009, while still in training, the applicant underwent a unit urinalysis testing.  On 13 January 2009, a report summary confirmed the applicant tested positive for cocaine.

3.  On 9 March 2009, the applicant underwent a mental status evaluation based on his being considered for discharge for his misconduct.  The evaluator found the applicant's behavior was cooperative; his level of alertness was fully oriented; his mood and affect were stable; his thinking process was clear; his thought content was normal; and his memory was good.  The evaluator opined that the applicant had the mental capacity to undergo and participate in the proceedings; he was mentally responsible; he met medical retention requirements; and he needed no further examination.  Finally, the evaluator indicated there was no potential that the applicant would harm himself, would do harm to others, or would go absent without leave (AWOL).

4.  The applicant's unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense based on his misconduct by using illegal drugs. 

5.  The applicant consulted with Trial Defense Services and after being advised of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights, he voluntarily waived the opportunity to speak with counsel.  He completed an election of rights, in which he waived consulting counsel and elected not to submit a statement in his own behalf.

6.  On 3 April 2009, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c.  He also directed the applicant's service be characterized as honorable.  On 10 April 2009, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time confirms that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JKK and an RE code of 4.

7.  There is no indication the applicant has applied to the Army Discharge Review Board (ADRB) requesting a change to the authority and reason for his discharge.



8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for 
separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  

9.  Paragraph 14-12c of the same regulation provides for the separation of members for misconduct based on the commission of a serious offense.  Subparagraph (2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c.  It further states, in pertinent part, that Soldiers are required to be processed for separation for abuse of illegal drugs.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.

10.  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.  RE-4 applies to persons who have a nonwaivable disqualification.

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 JKK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of abuse of illegal drugs.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-4 code is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph
14-12c(2), by reason of misconduct (drug abuse).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed in order to allow him to further serve, primarily in law enforcement, once he has matured has been carefully considered.  However, this factor alone is not sufficiently mitigating to support granting the requested relief.

2.  Although the applicant's desire to serve again is noteworthy, this factor alone does not support a change to his RE-4 code.  The applicant's service was in fact characterized as honorable based on his outstanding performance in training and 
his mental status evaluation found him mentally responsible for his actions.  This attests to the fact he was sufficiently mature to serve without committing the drug abuse misconduct that led to his discharge, which was a personal choice he made knowing it would jeopardize his military career.

3.  The applicant's 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 process.

4.  The record confirms the applicant was separated by reason of misconduct (drug abuse) based on his wrongful use of cocaine.  He was appropriately assigned an SPD code of JKK based on the authority and reason for his discharge and an RE-4 code based on his abuse of illegal drugs.  Absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting the requested relief.

5.  The applicant is advised that an RE code is an administrative code assigned to dictate a member's military reentry eligibility status.  Any use of this code by civilian employers, including local, state and federal law enforcement agencies, is not within the purview of this Board.  Any issues related to civilian employment should be addressed to the appropriate civilian employer.

6.  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)                                         AR20090011318



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ABCMR Record of Proceedings (cont)                                         AR20090011318



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