IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20090021350 


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 upgrade of his general discharge to an honorable discharge and change of his reentry eligibility (RE) code to one which would allow him to reenter the Army.

2.  The applicant states:

* this is his second attempt to change his discharge
* since he was discharged he has been to treatment for drug addition
* he attends at least two narcotics anonymous meetings a week
* he has been clean for over 1 year and he is employed at a fast food restaurant
* he believes he is a good Soldier and his country needs him
* he should be given a second chance  to make something of his life
* his family supports him and he promises if given a second chance, he will be a great Soldier
* he will not let the Army down and will do whatever it takes to reenlist
* he will not make the same mistake twice

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army (RA) on 1 February 2007 in the pay grade of E-2.  He completed training as a parachute rigger and he was advanced to the grade of E-3 on 1 March 2008.

2.  On 3 March 2008, the applicant was counseled by his platoon sergeant for testing positive for cocaine on or about 14 February 2008.  According to the DA Form 4856 (Developmental Counseling Form) the company to which he was assigned was administered a urinalysis.  After the urinalysis was completed another Soldier went to the platoon sergeant with information that the applicant was going to test positive for drugs.  The platoon sergeant told the company commander what the other Soldier said and at a close-out formation, the company commander asked the applicant if he had been using drugs.  The applicant told the company commander he had recently used cocaine.  The applicant's urinalysis results were also positive for cocaine use.

3.  The applicant's platoon sergeant told him that he was recommending nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) and separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, by reason of misconduct - drug abuse.  The applicant was told of the effect of a less than fully honorable discharge and he indicated he agreed with the information on the DA Form 4856.

4.  On 5 March 2008, the applicant underwent a Mental Status Evaluation and he was cleared for any administrative action deemed necessary by his command.

5.  On 17 March 2008, NJP was imposed against the applicant for wrongfully using cocaine on or about 14 January 2008 to 14 February 2008.

6.  On 24 March 2008, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c(2), for commission of a serious offense.  His commander cited wrongful use of drugs on 14 February 2008 as the basis for his recommendation.

7.  The applicant acknowledged receipt of the notification on 24 March 2008 and, after consulting with counsel, he elected not to submit a statement in his own behalf.  The appropriate authority approved the recommendation for discharge on 28 March 2008 and he directed the issuance of a General Discharge Certificate.


8.  Accordingly, on 10 April 2008, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-24c(2), for misconduct, due to drug abuse.  He had completed 1 year, 2 months, and 10 days of net active service this period and he was issued a General Discharge Certificate.  He was also issued a separation code of "JKK" and an RE code of "4."

9.  On 18 September 2009, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge and a change of his
RE code.

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.  Paragraph 14-12c(2) states, "Abuse of illegal drugs is serious misconduct."  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization 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.  

12.  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 of "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct - drug abuse.  The SPD/RE Code Cross Reference Table further stipulates that an RE-4 code will be assigned to members separated with an SPD code of "JKK."

13.  Army Regulation 635-200 further 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the 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's contentions have been considered and he is commended for his post-service conduct.  However, neither his contentions nor his post-service conduct are insufficiently mitigating to warrant the requested relief.

2.  The applicant underwent a urinalysis and his sample tested positive for cocaine.  He also admitted to his company commander that he used cocaine.  He was counseled and he had NJP imposed against him as a result of his acts of misconduct.

3.  He was discharged and assigned an RE code in accordance with the applicable regulation.  He has provided no evidence to show that the RE code he was issued is incorrect or unjust as it properly corresponds with his separation code and his narrative reason for separation.

4.  It appears that the applicant was issued a General Discharge Certificate based on his overall record of service because, in accordance with the applicable regulation, an under other than honorable conditions is normally considered appropriate based on his reason for his discharge.

5.  The applicant has not shown error or injustice in the type of discharge he received.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090021350



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ABCMR Record of Proceedings (cont)                                         AR20090021350



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