BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20090017006 


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 a change to his reentry eligibility (RE) code from RE-4 to a more favorable code that would allow him to reenter military service.

2.  The applicant states that his misconduct was his one and only major offense during his military service.  He simply wants another chance to return to military service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 May 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 5 July 2005 and held military occupational specialty (MOS) 89B (Ammunition Specialist).  The highest rank/grade he attained during his military service was specialist (SPC)/
E-4.

2.  His records also show he served in Iraq from 25 September 2006 to 15 December 2007.  His awards include the National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Driver and Mechanic Badge with Driver-T [for tracked vehicles] Bar, Driver and Mechanic Badge with Driver "W" [for wheeled vehicles] Bar, Iraq Campaign Medal with
2 bronze service stars, and 2 overseas service bars.

3.  On 20 and 26 February 2008, he tested positive for marijuana during a unit urinalysis. 

4.  On 24 March 2008, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on two occasions between on or about 23 January 2008 and 20 February 2008 and between on or about 29 January 2008 and 26 February 2008.  His punishment included reduction to private (PV2)/E-2, a reduction to private/E-1 (suspended, to be automatically remitted if not vacated before 23 May 2008), a forfeiture of $751.00 pay per month for 2 months, and 45 days of extra duty.

5.  On 28 April 2008, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c for misconduct - abuse of illegal drugs.

6.  On 3 May 2008, he acknowledged receipt of the separation memorandum and consulted with legal counsel who advised him 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, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement in his own behalf (his statement is not available for review with this case).

7.  On 5 May 2008, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c for misconduct.

8.  On 5 May 2008, his intermediate commander recommended approval of the applicant’s discharge with the issuance of a general, under honorable conditions discharge.

9.  On 7 May 2008, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for abuse of illegal drugs with a general, under honorable conditions discharge.  On 29 May 2008, he was accordingly discharged.  His DD Form 214 shows he was discharged with a general, under honorable conditions discharge.  This form further shows he completed 2 years, 10 months, and 25 days of total active service.  Item 26 (Separation Code) of this form shows the entry "JKK" and item 27 (Reentry Code) shows the entry "4."

10.  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 was 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 regulation.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It 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.  Table 3-1 included a list of the Regular Army RE codes.

* 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.

* 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.

* RE-4 applies to Soldiers separated from their last period of service with a
nonwaivable disqualification.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "JKK" SPD code is the correct code for Soldiers separating 

under chapter 14-12c of Army Regulation 635-200 by reason of misconduct, abuse of illegal drugs.

13.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  He contends his RE-4 code should be upgraded to a more favorable code.

2.  The evidence of record confirms his RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his abuse of illegal drugs.  Absent the drug abuse, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - drug abuse" and the appropriate RE code associated with this discharge an RE-4 which is correctly shown on his DD Form 214.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  He has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.

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)                                         AR20090017006



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ABCMR Record of Proceedings (cont)                                         AR20090017006



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