IN THE CASE OF:	  

		BOARD DATE:	  	  22 June 2010

		DOCKET NUMBER:  AR20090020811 


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 her reentry eligibility (RE) code 4 be changed to RE code 3 to allow her to reenter the Army.

2.  The applicant states she was not given the chance to prove her worth to her unit from the first day of her arrival.

	a.  She states she began her Army career on 28 April 2007 at Fort Dix, NJ.  During the second week of training she suffered from severe nicotine withdrawal. 
She adds that she fractured her ankle about 2 1/2 weeks before graduating from basic training; however, she completed basic combat and advanced individual training.

	b.  She states she was then assigned to the 3rd Brigade, 1st Infantry Division, Fort Hood, TX.  She was told she would be assigned to the 201st Base Support Battalion; however, she was kept at the brigade.

	c.  She states she was given an Article 15 for wrongful use of marijuana.  She also states she made a horrible mistake and accepted the punishment for what she had done.  She adds that the shock of being on her own and the burden of paying for her brother's schooling and part of her sister's college tuition had overwhelmed her.

	d.  She states she asked her chain of command to lift the flag that was placed on her, but her request was denied.  She also requested reassignment to a different battalion or brigade; however, this request was denied, too.  She adds that her noncommissioned officers told her that no other unit wanted her.

	e.  She states she was not given the chance to rehabilitate herself after the incident she was accused of and that her discharge was an injustice.  She adds that she would like the opportunity to reenter the Army.

3.  The applicant provides copies of a DA Form 8003 (Army Substance Abuse Program Enrollment, two Medical Command (MEDCOM) Forms 699-R (Report of Mental Status Evaluations), and her Enlisted Record Brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army for a period of 4 years and 20 weeks on 26 April 2007.  Upon completion of training she was awarded military occupational specialty 42A (Human Resources Specialist).  She was assigned to the Replacement Detachment, 3rd Brigade, 1st Infantry Division, Fort Hood, TX, on 21 September 2007.

2.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 14 December 2007, shows nonjudicial punishment (NJP) was imposed by the battalion commander against the applicant for her wrongful use of marijuana.  The applicant elected to present matters in defense, mitigation, and/or extenuation in a closed hearing.  Her punishment consisted of reduction to private/E-1, forfeiture of $650.00 pay per month for 2 months, 45 days of restriction to the brigade area, and 45 days of extra duty.  The applicant did not appeal the NJP.

3.  A DA Form 2627, dated 28 March 2008, shows NJP was imposed by the battalion commander against the applicant for willfully disobeying a lawful command received from her superior commissioned officer.  The applicant elected to present matters in defense, mitigation, and/or extenuation in a closed hearing.  Her punishment consisted of forfeiture of $673.00 pay per month for 2 months (the amount in excess of $300.00 pay per month for 2 months suspended), 45 days of restriction to the brigade area, and 45 days of extra duty.  The applicant did not appeal the NJP.

4.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows the company commander recommended the applicant be barred from reenlistment and that she was provided a copy of the recommendation.  She was also counseled and advised of the basis for the action.  The applicant indicated with her initials that she did not desire to submit a statement in her own behalf.  The battalion commander approved the bar to reenlistment certificate on 8 April 2008.

5.  A DA Form 4856 (Development Counseling Form) shows the company commander counseled the applicant for failing to report for extra duty on 1 May 2008, misconduct, and unsatisfactory performance.  The applicant indicated with her initials that she agreed with the information and did not offer a statement in her own behalf.  The applicant and company commander each placed their signature on the counseling form on 2 May 2008.

6.  The applicant's company commander notified the applicant of his intent to initiate action to separate her from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 
14-12c, based on commission of a serious offense.  The commander noted the applicant's wrongful use of marijuana, disobeying a lawful command received from her superior commissioned officer, and failure to report for extra duty as reasons for the proposed action.  The applicant was advised of her rights and the separation procedures involved.

7.  The applicant acknowledged that she had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.  The applicant and her counsel each placed their signature on the document.
   
8.  The company commander recommended the applicant be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c.

	a.  The separation packet contained the applicant's Report of Mental Status Evaluation.

	b.  The commander requested that the rehabilitative transfer requirement be waived.

9.  The Commander, Rear Provisional, 3rd Brigade Combat Team, 1st Infantry Division, Fort Hood, TX, waived the rehabilitative transfer requirements and approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c.  He directed the applicant receive a general discharge with a characterization of service of under honorable conditions.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she entered active duty on 26 April 2007 and was discharged on 9 October 2008 under the provisions of Army Regulation 635-200, paragraph 
14-12c(2), for misconduct based on commission of a serious offense (drug abuse) and her service was characterized as under honorable conditions.

	a.  At the time she had completed 1 year, 6 months, and 1 day of net active service.

	b.  She was assigned separation designator code (SPD) JKK and RE code 4.

11.  In support of her application she provides the following documents:

	a.  A DA Form 8003, dated 22 February 2008, shows the company commander referred the applicant to the Army Substance Abuse Program for a comprehensive assessment based on her improper use of drugs.  He indicated the applicant need alcohol and/or drug education.

	b.  A MEDCOM Form 699-R, dated 15 April 2008, shows the evaluating psychologist found the applicant had the mental capacity to understand and participate in the separation proceedings, she was mentally responsible, and did not have an unfitting diagnosis that would require a medical evaluation board.  The psychologist noted the applicant wished to remain in the service and was carrying a considerable burden from her family.  He added the applicant would benefit from practical counseling in setting limits with her family and alleviating the stress they place upon her.

	c.  A MEDCOM Form 699-R, dated 11 August 2008, shows the evaluating psychologist found the applicant had the mental capacity to understand and participate in the separation proceedings, she was mentally responsible, and did not have an unfitting diagnosis that would require a medical evaluation board.  The psychologist noted the applicant was cleared for any other administrative action deemed appropriate by the command.  He added that should the applicant receive ongoing counseling, it may be possible to retain her, should the command so choose.

12.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

	b.  Paragraph 14-12c states that Soldiers are subject to separation action for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.

	c.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a (minor disciplinary infractions) or paragraph 14-12b (pattern of misconduct), as appropriate.  All Soldiers against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 (alcohol or other drug abuse rehabilitation failure) or section II (statutory authority) of chapter 14 will be processed for separation under paragraph 14-12a, b, or c, as applicable.

	d.  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 under honorable conditions discharge or an honorable discharge if such is merited by the Soldier's overall record.

13.  Army Regulation 635-5-1 (Separation Program Designator 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 identifies the SPD code JKK as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct based on commission of a serious offense (drug abuse).

14.  The SPD/RE Code Cross Reference Table shows that a Soldier issued SPD code JKK will be assigned an RE code 4.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) 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.  An RE code 4 applies to persons who have a non-waivable disqualification and may not request reentry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her RE code 4 should be changed to RE code 3 because she was not given the chance to prove her worth to the unit from the first day of her arrival, she was not given the chance to rehabilitate herself after the incident she was accused of, and her discharge was unjust.
2.  The applicant's contentions were carefully considered.

	a.  Shortly after her arrival at Fort Hood, TX, the applicant received NJP on two occasions, the first for her wrongful use of marijuana and the second for disobeying a lawful command received from her superior commissioned officer.  She was subsequently counseled for failing to report for extra duty.

	b.  On all three of these occasions, the applicant was afforded the opportunity to submit evidence and information in her own behalf.  There is no evidence that she requested a rehabilitative transfer.

	c.  The evidence fails to support the applicant's contention that she was not given the chance to prove her worth to the unit or that she took steps to rehabilitate herself.

3.  The applicant's discharge was administratively correct and in compliance with applicable regulations.  In addition, all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The applicant was afforded the opportunity to consult with counsel and to submit evidence and information in her own behalf.  However, there is no evidence that she did so.  The evidence fails to support the applicant's contention that her discharge was unjust.

4.  The applicant's assigned RE code 4 is based on the authority and reason for her discharge.  Thus, the assigned RE code was appropriate at the time of discharge and it remains valid.  Therefore, there is no basis to change the applicant's RE code.

5.  In order to justify 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)                                         AR20090020811



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ABCMR Record of Proceedings (cont)                                         AR20090020811



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