IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090013377 


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 that his reentry eligibility (RE) code be upgraded.

2.  The applicant states he would like to have his RE code upgraded so that he may be allowed to reenter the military.

3.  The applicant provides a copy of his Army Discharge Review Board (ADRB) Proceedings.

CONSIDERATION OF EVIDENCE:

1.  The applicant served on active duty in the Regular Army from 10 March 2005 through 22 January 2008.  This period of service includes a tour of duty in Iraq from 8 January through 18 November 2006.

2.  The applicant's unit commander referred the applicant to mental hygiene twice due to concerns of drug/alcohol abuse, a lack of motivation, dereliction of duties, disorientation, repeatedly being late for duty, and due to inconsideration of others.

3.  Mental Status Evaluations, dated 3 May and 14 December 2007, show the attending psychiatrist found no psychiatric concerns and the applicant denied any risk issues.  The applicant was cleared for any administrative action deemed appropriate by the command on both occasions.

4.  A Developmental Counseling Form, dated 10 May 2007, shows the applicant was counseled for a third drug/alcohol related offense and failure to report for duty.  The unit commander reported the applicant stated “I’m under the influence of an illegal substance (cocaine) and not drunk.”  The applicant was tested for drugs and alcohol and found to have a blood alcohol content (BAC) of .017.  Under the terms of his agreement for participation in the rehabilitation program he was not allowed to have a BAC higher than .005 at any time.  Additionally, the applicant admitted to failing to heed the revocation of his pass privileges and admitted to travelling off post to purchase illegal drugs.

5.  On 24 September 2007, a special court-martial found the applicant guilty of three specifications of wrongful use of cocaine.  He was sentenced to reduction to pay grade E-1 and confinement for 9 months.

6.  On 9 January 2008, the applicant's command initiated separation action for commission of a serious offense as documented by his conviction by a special court-martial for testing positive for the use of cocaine.  It was recommended that the applicant receive a general discharge.

7.  On 10 January 2008, the applicant acknowledged the proposed separation action under Army Regulation 635-22, chapter 14-12c for commission of a serious offense.  He acknowledged that such a discharge would deprive him of many or all benefits as a veteran and that he could expect to experience substantial prejudice in civilian life.  The applicant waived his right to submit a statement in his own behalf.

8.  On 11 January 2008, the discharge authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 
14-12c, commission of a serious offense.  He waived the requirement for a rehabilitative transfer and directed the applicant receive a general discharge under honorable conditions.  On 22 January 2008, the applicant was discharged accordingly.  His DD Form 214 shows he was issued a general discharge.  The narrative reason for separation is "Misconduct (Drug Abuse)," he was assigned a separation program designator (SPD) code of JKK and an RE code of "4." 

9.  On 3 June 2009, the ADRB denied the applicant's request to upgrade his discharge and to change his narrative reason for separation.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this 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 term of service date.  Individuals in pay grades 
E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  In pertinent part, it states that an SPD code of "JKK" is assigned to Soldiers who are involuntarily discharged due misconduct, drug abuse.  The requirement is that this individual be assigned an RE Code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded so that he may be allowed to reenter the military.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  RE codes are directly linked to the reason for separation from active duty.  As such, the applicant's narrative reason for separation would have to be changed.  The applicant has established no basis for changing his narrative reason for separation.  He was separated for misconduct, had it not been for this misconduct he would not have been separated.  Therefore, the applicant has not established a basis to support 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)                                         AR20090013377



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ABCMR Record of Proceedings (cont)                                         AR20090013377



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