IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090019605 


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 the Reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states that he received a general, under honorable conditions discharge after failing one drug test and without any counseling attempts.  He adds that he feels the RE code of "4" is unjust considering the failed drug test was after Christmas Exodus from Advanced Individual Training.  The applicant maintains that he wants to serve his country and the Army again and be a better Soldier than he was before.

3.  The applicant provides a copy of his DD Form 214 and DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice].

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army (RA) on
15 June 2006.

2.  On 16 March 2007, nonjudicial punishment under Article 15, UCMJ, was imposed against the applicant for wrongful use of cocaine between 4 December 2006 and 4 January 2007.  His punishment consisted of reduction to the rank/grade of private (PV1)/E1, forfeiture of $650.00 pay per month for 2 months (suspended), and restriction and extra duty for 45 days.

3.  On 26 April 2007, the applicant’s unit commander notified him of the intent to recommend that he be separated from the Army 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 (wrongful use of cocaine).  The commander recommended that any further requirements for counseling and rehabilitation be waived based on his belief that further duty of the Soldier would:

   a.  create serious disciplinary problems or a hazard to the military mission or to the Soldier,

	b.  be inappropriate because Soldier is resisting rehabilitation attempts, and

	c.  rehabilitation would not be in the best interest of the Army as it would not produce a quality Soldier.

4.  On 26 April 2007, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, the applicant waived consideration of his case by an administrative board, personal appearance, and his right to be represented by counsel.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/
character of service that is less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge.  He acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

5.  On 1 May 2007, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority directed that the applicant be issued a General, Under Honorable Conditions Discharge Certificate.

6.  The applicant's DD Form 214 shows he was discharged on 23 May 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse) with a general, under honorable conditions discharge.  
He was credited with completing 11 months and 9 days of active service.
Item 26 (Separation Code) shows he was assigned a code of "JKK" and item 27 shows his RE code as "4."

7.  Army Regulation 635- 200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

8.  Army Regulation 635-5-1 (Separation Program Designator (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, by reason of misconduct (drug abuse).  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKK.

9.  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), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA 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 time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was discharged after failing one drug test without any counseling attempts.  The regulation as cited above states that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The commander recommended that further requirements for counseling and rehabilitation attempts be waived due to the applicant creating disciplinary problems, resistance to rehabilitation attempts, and rehabilitation would not produce a quality Soldier.

2.  The available evidence shows the applicant was separated due to drug abuse.  Therefore, he was assigned an RE code of 4 which is consistent with the reason for separation.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE code is in error or unjust.

3.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and the both the narrative reason for separation and the characterization of service are appropriate considering all the facts of the case.

4.  Absent any evidence of error or injustice in the discharge process, the assigned RE code is proper and equitable based on the authority and reason for discharge.  As a result, there is an insufficient evidentiary basis to support a change of the RE code.

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)                                         AR20090019605



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ABCMR Record of Proceedings (cont)                                         AR20090019605



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