BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011856 


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, that his reenlistment code, otherwise known as the reentry eligibility (RE) code, be upgraded from a "4" to a more favorable RE code.

2.  The applicant states, in effect, that sufficient time has elapsed since his discharge and that he is currently living a clean lifestyle with no recent criminal records.  He would like his RE code upgraded so that he can return to the Armed Forces and enlist in the U.S. Navy.   

3.  The applicant provides in support of his application a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated 12 December 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 March 2006.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 19D (Cavalry Scout).  After completing his training, the applicant was assigned to A Troop, 1st Squadron, 73rd Cavalry Regiment (Airborne) (Reconnaissance), 2nd Brigade Combat Team, 82nd Airborne Division.  



2.  The applicant received numerous counseling statements for minor disciplinary infractions including failure to maintain and possess his military identification card; failure to follow orders or instructions of superiors appointed above him; and failure to follow military law, regulations and unit standard operating procedures which included underage drinking, possessing and consuming alcoholic beverages, use of illegal substances, and handling a loaded civilian firearm on a government installation. 

3.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 12 December 2006 for wrongful use of marijuana on or between 18 October 2006 and 18 November 2006.  

4.  After a command directed psychological evaluation on 27 November 2006, the applicant was found to be mentally responsible for his behavior, that he could distinguish right from wrong, and that he possessed sufficient mental capacity.  There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition though medical channels.  He was medically cleared for any administrative action or training as deemed appropriate by his chain of command. 

5.  On 19 December 2006, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct, commission of a serious offense, due to his wrongful use of marijuana and methylenedioxy amphetamines (MDA) during a unit urinalysis on 18 November 2006.  

6.  On 19 December 2006, the applicant acknowledged receipt of the separation memorandum.  He was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  

7.  After consulting with defense counsel on 26 December 2006, the applicant waived his right to an administrative separation board in exchange for a general discharge.  

8.  Subsequently, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c)(2) of Army Regulation 635-200 for misconduct, commission of a serious offense, abuse of illegal drugs.  

9.  The applicant's intermediate commanders recommended the applicant's conditional waiver of an administrative separation board be disapproved and that he be issued an under other than honorable conditions discharge.

10.  On 28 December 2006, the commanding general disapproved the applicant's request for a conditional waiver.  He appointed a Board of Officers in accordance with Army Regulation 635-200, chapter 2, paragraph 2-7 and Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to determine if the applicant should be retained on active duty or discharged, and if discharged recommend an appropriate characterization of service. 

11.  On 28 December 2006, the board president notified the applicant that an investigation into his misconduct would be conducted on 3 January 2007.  He also stated that the board would convene without affording him the regulatory minimum of 15 days from date of notification because the 2nd Brigade Combat Team would be deploying on short notice to support Operation Iraqi Freedom. 

12.  On 29 December 2006, the applicant again consulted with counsel and was advised of the contemplated actions to separate him for minor discipline infractions, patterns of misconducts, and commission of a serious offense.  The applicant then submitted an unconditional waiver to the board president and approval authority waiving consideration by an administrative separation board.  He also waived a personal appearance before the board and he indicated that he would not submit statements on his own behalf.    

13.  On 5 January 2007, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, commission of a serious offense, abuse of illegal drugs, and directed the applicant be furnished an under other than honorable conditions discharge.

14.  Accordingly, the applicant was discharged on 19 January 2007.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions discharge.  This form further confirms that he had completed a total of 10 months and 11 days of active duty service, that item 26 (Separation Code) shows the entry "JKK," and that item 27 (Reentry Code) shows the entry "4."

15.  Army Regulation 635-200 sets forth the basic authority 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.

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.  The primary purpose of the SPD code is to provide a statistical accounting of reasons for separation intended exclusively for the internal use of the Department of Defense.  It states, in pertinent part, that the SPD code "JKK" is the appropriate code to assign to Regular Army Soldiers who have are involuntarily discharged for misconduct (drug abuse) under the provisions of paragraph 14-12c(2) of Army Regulation 635-200.

17.  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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 includes a list of the Regular Army 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 to reenlist unless a waiver is granted.

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

18.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated 15 June 2006, shows that the appropriate RE code for the SPD code of "JKK" is RE-4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded so he can enlist in the U.S. Navy.

2.  The evidence of record shows that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct, abuse of illegal drugs.  The only valid SPD permitted for paragraph 14-12c is "JKK" and the appropriate RE code associated with this type of SPD in 2007 was RE-4.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.

4.  While the applicant’s desire to enlist is commendable, the Board does not change a properly-constituted military record to establish eligibility for a program or benefit.

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)                                         AR20090011856





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ABCMR Record of Proceedings (cont)                                         AR20090011856



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