IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007469 


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 his reentry eligibility (RE) code of 4 be changed to a more favorable RE code.  

2.  The applicant states, in effect, the drug offense that led to his assigned RE code was based on a onetime thing.  He understands there is a zero tolerance policy for drug use, but he wants the change to make his country proud.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) and entered active duty on 17 January 2008.  He was trained in and awarded military occupational specialty (MOS) 92G (Food Service Operations Specialist).  His record documents no acts of valor or significant achievement. 

2.  On 1 August 2008, the applicant underwent a unit urinalysis testing.  On 
14 August 2008, a lab report shows the applicant tested positive for cocaine.

3.  On 29 August 2008, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice for using cocaine between on or about 28 July and on or about 1 August 2008.  His punishment for this offense was a reduction to private/E-1, a forfeiture of $673.00 pay for 2 months (suspended) and 45 days of extra duty and restriction.  
4.  On 19 September 2008, the suspended portion of the applicant’s punishment was vacated based on the applicant making a false statement to a noncommissioned officer (NCO) on or about 3 September 2008.

5.  On 12 December 2008, the applicant's unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense based on the use of illegal drugs. 

6.  On 16 December 2008, the applicant consulted with Trial Defense Services and after being advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effects of a waiver of those rights, he voluntarily waived consideration of his case by, and personal appearance before an administrative separation board.  He also waived his right to consult counsel.  

7.  On 13 January 2009, the separation authority directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c and that he be issued a general discharge.  On 28 January 2009, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned a Separation Program Designator (SPD) code of JKK and an RE code of 4.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) requesting a change of the authority and reason for his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

10.  Army Regulation 635-200, paragraph 14-12c provides for the separation of members for misconduct based on the commission of a serious offense.  Subparagraph (2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c.  It further states, in pertinent part, that Soldiers are required to be processed for separation for abuse of illegal drugs.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.

11.  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).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.

12.  Army Regulation 635-5-1 (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 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 abuse of illegal drugs.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-4 code is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph
14-12c(2), by reason of misconduct (drug abuse).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code of 4 should be changed because it was based on a single incident has been carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  Although the applicant's desire to make his country proud is noteworthy, this factor does not support a change of his assigned RE code.  The applicant's service was in fact characterized as general, under honorable conditions based on his generally good conduct.  This attests to the fact he was sufficiently mature to serve without committing the drug abuse misconduct that led to his discharge, which was a personal choice he made knowing it would jeopardize his military career.

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

4.  The record confirms the applicant was separated by reason of misconduct (drug abuse) based on his wrongful use of cocaine.  He was appropriately assigned an SPD code of JKK based on the authority and reason for his discharge and an RE code of 4 based on his abuse of illegal drugs.  Absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting 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)                                         AR20100007469



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)