BOARD DATE: 13 July 2010
DOCKET NUMBER: AR20100000610
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 narrative reason for his discharge and his reentry eligibility (RE) code 4 be changed so he may enlist in the U.S. Army.
2. The applicant states that he is a veteran of the U.S. Army and would like a second chance to serve his country. During his previous enlistment he made a few bad choices and accepts full responsibility for his actions. He now has a fiancé and family and wants to be able to provide a better life for them. He misses the Army lifestyle and would like his family to experience it with him. He wants another chance to fight for his country. He actually enjoyed Iraq.
3. The applicant provided no additional documentation in support of his application.
CONSIDERATION OF EVIDENCE:
1. On 4 February 2005, the applicant enlisted in the Regular Army (RA). He completed his initial training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).
2. On 13 February 2007, the applicant tested positive for cocaine. He was recommended for separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to drug abuse.
3. On 15 May 2007, the applicant's brigade commander approved the separation and directed that he receive a general discharge. The commander then suspended his approved administrative separation for misconduct for a period of 12 months. The commander stated that the applicant was a highly deserving Soldier who should be given a period of probation to show successful rehabilitation.
4. On 9 July 2007, the applicant again tested positive for cocaine.
5. On 21 July 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.
6. On 15 August 2007, the applicant's brigade commander vacated the suspended execution of his approved separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct for abuse of illegal drugs.
7. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was issued a separation program designator (SPD) code of JKK and an RE code of 4. His service was characterized as under honorable conditions (general).
8. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Chapter 3 prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes including RA RE codes. RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification. This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
9. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14, for misconduct for drug abuse. Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper RE code to assign to Soldiers for this reason.
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 the commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
11. Army Regulation 635-200 further provides that the misconduct is considered a commission of a serious 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 UCMJ.
12. Under the UCMJ, the maximum punishment allowed for wrongful use of cocaine is a punitive discharge and confinement for 5 years.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that the narrative reason for his discharge and his RE code 4 should be changed so he can enlist in the U.S. Army.
2. The narrative reason for the applicant's discharge, SPD code JKK, and RE code 4, establishing his ineligibility for enlistment/reenlistment, were correctly entered on his DD Form 214 in accordance with governing regulations. There is no evidence of error or injustice.
3. The evidence of record clearly shows that the applicant was given a second chance while still on active duty. He subsequently tested positive for cocaine and was accordingly discharged.
4. There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for the RE code 4. While the applicant's desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100000610
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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