BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090020757 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD) and that his reentry (RE) code be changed.

2.  The applicant states he knows he made mistakes but he is now a father and husband, and his family is his motivation.  He states they inspire him to do and be better.  He concludes by stating a change to his discharge and RE code would allow him to reenlist and he wishes to do this because he feels he let his family and country down by making immature mistakes. 

3.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 29 June 2001.  He was trained in and awarded military occupational specialty 92G (Food Service Specialist).

2.  The record shows the applicant was advanced to the rank/grade of private first class (PFC)/E-3 on 1 November 2002, and this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the offenses indicated: 

	a.  27 July 2003, for failing to go at the time prescribed to his appointed place of duty and for sleeping on his post while being posted as a sentinel;  

	b.  19 May 2004, for assault on another Soldier; and 

	c.  14 September 2004, for wrongfully using cocaine.

4.  On 3 November 2004, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense (abuse of illegal drugs).  The applicant's unit commander based his recommendation for separation on the applicant's wrongful use of cocaine.  The applicant acknowledged the contemplated action on 24 March 1988 and requested consideration of his case by an administrative separation board.

5.  On 17 March 2005, an administrative separation board convened and recommended the applicant be separated from the service with a GD.  

6.  The separation authority approved the administrative separation board's proceedings and directed the applicant be separated from the Army and issued a GD.  On 17 June 2005, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant upon his separation confirms he was separated with a GD after completing 3 years, 11 months, and 19 days of active military service.  He was separated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), by reason of misconduct-abuse of illegal drugs.  The DD Form 214 further shows that based on the authority for his separation, he was assigned a corresponding separation program designator (SPD) code of JKK and RE code of 4.

8.  On 15 July 2008, the Army Discharge Review Board determined the applicant's reason for discharge and characterization of service were both, proper and equitable and denied his request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse.  It provides for the separation of Soldiers for commission of a serious offense based on the use of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions. 

10.  The same regulation stipulates an HD is a separation with honor and entitles the recipient to benefits provided by law.  An HD is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  

   a.  RE-4 applies to persons not qualified for continued Army service, and the disqualification is not waivable;
   
   b.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable; and 

	c.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

12.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD code of JKK as shown on the applicant's DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is Misconduct (Drug Abuse) and the authority for discharge is Army Regulation 635-200, chapter 14, paragraph 14-12c (2).  The SPD/RE Code Cross Reference Table states that when the SPD code is JKK then RE code 4 will be issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD and his RE should be changed has been carefully considered.  However, the evidence of record confirms the applicant's separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's record of misconduct, including his abuse of illegal drugs, clearly diminished the overall quality of his service below that warranting an HD.  Therefore his overall record of service did not support the issue of an HD by the separation authority at the time of his discharge, and although his current commitment to his family is noteworthy, it does not support an upgrade of his discharge now.  

3.  By regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of chapter 14, Army Regulation 635-200 for misconduct - abuse of illegal drugs.  As a result, the RE-4 code assigned was and still is appropriate based on the authority and reason for his separation.  As a result, no change is authorized to his RE code absent a change to the authority and reason for his discharge. 

4.  In order to justify a 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)                                         AR20090020757



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ABCMR Record of Proceedings (cont)                                         AR20090020757



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