IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019660 


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, through his Member of Congress, a change to his reentry eligibility (RE) code from RE-4 to a more favorable code that would allow him to reenter military service.  He also requests a personal hearing.

2.  The applicant states that his discharge was inequitable because it was based on one isolated set of events in 24 months of service with no adverse action.

3.  The applicant provides a complete copy of his separation packet in support of his request.

4.  The case analyst of record contacted the applicant on three separate occasions on 29 April and on 4 and 5 May 2010 to verify if he wanted an upgrade of his discharge through the Army Discharge Review Board (ADRB) prior to submitting his request to the Army Board for Correction of Military Records (ABCMR).  He indicated that all he wants is to reenter the Army.  He was provided with contact information to submit the appropriate form and justification to the ADRB if he so desired but failed to do so. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 10 March 2006 and held military occupational specialty 11B (Infantryman).  He was assigned to the 2nd Battalion, 22nd Infantry, Fort Drum, NY, and he attained the rank/grade of private first class/E-3.

2.  On 6 September 2007, he departed his unit in an absent without leave (AWOL) status but he returned to his unit on 1 October 2007.

3.  On 11 October 2007, he again departed his unit in an AWOL status and subsequently missed unit movement.  However, he returned on 24 October 2007.

4.  On 17 December 2007, he pled guilty at a summary court-martial to two specifications of being AWOL from on or about 6 September 2007 to on or about 1 October 2007 and on or about 11 October 2007 to on or about 24 October 2007; one specification wrongfully consuming alcohol while under age on or about 4 November 2007; and one specification of wrongfully using marijuana, between on and about 5 September 2007 and on or about 5 November 2007.  He also pled not guilty to one specification of failing to go at the time prescribed to his appointed place of duty on or about 26 October 2007.  The Court found him guilty of all specifications and sentenced him to a reduction to private/E-1 and 30 days of confinement.  The convening authority approved his sentence on 26 December 2007.

5.  On an unknown date in 2008, his 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 - commission of a serious offense.  He cited the specific reasons as his wrongful use of marijuana, two instances of AWOL, failure to go at the time prescribed to his appointed place of duty, and violation of a general regulation by wrongfully consuming alcohol while under age.  He also recommended a general discharge.

6.  On 13 February 2008, he acknowledged receipt of the separation memorandum and on 14 February 2008, he 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 not to submit a statement in his own behalf.

7.  Subsequent to his acknowledgement of this notification, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c for misconduct.

8.  On an unknown date, his intermediate commander recommended approval of the discharge with the issuance of a general, under honorable conditions discharge.

9.  On an unknown date, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - abuse of illegal drugs with a general, under honorable conditions discharge.  On 12 March 2008, the applicant was accordingly discharged.  

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 2 years and 3 days of creditable active service and had 40 days of lost time.  Item 26 (Separation Code) of this form shows the entry "JKK" and item 27 (Reentry Code) shows the entry "4."

11.  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.

12.  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 non-waivable disqualification.

13.  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 "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.

14.  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."

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE-4 code should be upgraded to a more favorable code.  He also requests a personal hearing.  

2.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  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 misconduct - 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.

4.  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)                                         AR20090019660



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ABCMR Record of Proceedings (cont)                                         AR20090019660



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