BOARD DATE: 1 April 2010
DOCKET NUMBER: AR20090015399
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 (RE) code on his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 August 2007 be changed.
2. The applicant states, in effect, after returning from his second tour in Iraq he was going through an unpleasant divorce, which in part contributed to his discharge from the military. The applicant states he was grown and learned to deal with problems. He would like to return to the military and rebuild his career.
3. The applicant provides his DD Form 214 that was reissued by the Army Discharge Review Board (ADRB) and an ADRB memorandum, dated 13 March 2008.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army (RA) on 14 March 2002 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 68M (Nutrition Care Specialist). On
18 March 2004, the applicant reenlisted in the RA for a 4-year term of service.
2. The applicant's military records indicate he was deployed in support of Operation Iraqi Freedom from January to July 2003 and October 2005 to October 2006.
3. On 9 January 2007, the applicant was command referred to the Army Substance Abuse Program (ASAP) at Fort Carson, Colorado for substance abuse treatment.
4. A DA Form 3349 (Physical Profile), dated 22 January 2007, shows the applicant was issued a temporary profile for alcohol dependency which expired on 29 January 2007.
5. A DA Form 4126-R, dated 5 March 2007, shows the applicant was barred from reenlistment for failure to meet height and height standards on 30 October 2003, for failure of a record Army physical fitness test (APFT) on 7 December 2005, and for failure of his APFT and height/weight failure on 22 February 2007.
6. A memorandum, dated 14 March 2007, shows the applicant attended the Alcohol and Drug Abuse Prevention and Control Program at Fort Carson, Colorado between 13 and 14 June 2005.
7. On 14 March 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.
8. On 14 April 2007, the applicants commander initiated elimination action against the applicant under the provisions of Army Regulation 635-200, chapter 14 for misconduct. The reason cited for the recommendation was the applicant tested positive for cocaine.
9. On 24 April 2007, the applicant was advised by consulting counsel of the basis for the contemplated separation action. The applicant was further advised of the impact of the discharge action. The applicant signed a statement acknowledging that he understood he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200. The applicant requested counsel and a hearing by a board of officers.
10. A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows the board was held on 8 June 2007 and the board members recommended that the applicant be separated for misconduct with an under other than honorable conditions discharge.
11. On 13 July 2007, the appropriate authority approved the recommendation and directed that the applicant receive an under other than honorable conditions discharge. On 2 August 2007, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, Misconduct - Drug Abuse. He completed a total of 5 years, 4 months, and 19 days of total active service.
12. The applicant's DD Form 214 for the ending period 2 August 2007 shows in item 24 (Character of Service) the entry "UNDER OTHER THAN HONORABLE CONDITIONS," item 26 (Separation Code) the entry "JKK," item 27 (Reentry Code) the entry "4," and item 28 (Narrative Reason for Separation) the entry "MISCONDUCT (DRUG ABUSE)."
13. The applicant applied to the ADRB for an upgrade of his discharge. On 11 February 2009, the ADRB determined that his characterization of service was too harsh and voted to upgrade his characterization of service to general under honorable conditions. The ADRB concluded that his overall length and quality of service to include two combat tours mitigated the discrediting entries in his record. However, ADRB determined that the narrative reason for separation was proper and equitable and voted not to change it.
14. The applicant was reissued a DD Form 214 that shows his character of service was changed to "UNDER HONORABLE CONDITIONS (GENERAL)."
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. Paragraph 14-12c(2) states that Soldiers are subject to separation for commission of a serious offense (abuse of illegal drugs) and that abuse of illegal drugs is serious misconduct.
16. 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. The SPD code of JFF was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of Chapter 14, Army Regulation 635-200, by reason of Misconduct (Drug Abuse). Additionally, the SPD/RE Code Cross Reference Table establishes that an RE code of 4 is the proper RE code to assign Soldiers separated with an SPD code of JKK.
17. Army Regulation 601-210 (RA and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve. Paragraph 3-22 of the regulation states that reentry code 4 applies to persons separated from last period of service with a nonwaivable disqualification.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his RE code should be changed so that he can enlist in the military. Evidence of record shows he was separated from the military by reason of misconduct (drug abuse). The ADRB reviewed the applicant's case and determined that the characterization of his discharge should be upgraded to a general discharge under honorable conditions. The ADRB further determined that the reason for discharge was proper and equitable and voted not to change it.
2. Although the ADRB granted partial relief in the applicant's request for a discharge upgrade but determined the reason for his discharge was proper and equitable, in accordance with the provisions of Army Regulation 635-5-1 the applicant was properly assigned an RE code of 4 based on his narrative reason for separation misconduct (drug abuse).
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.
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