IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016449 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code which would allow him to reenter the military.

2.  The applicant states he tested positive for drugs during his first appointment after he was enrolled in the Army Substance Abuse Program.  He states his command immediately began separation processing even though he subsequently tested negative for drugs on several occasions soon thereafter.  He adds that he feels his chain of command showed no sympathy for his situation.

3.  The applicant provides a letter from the Department of Veterans Affairs and several drug test results.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on 19 July 2006.  He completed initial entry training and was awarded the military occupational specialty of infantryman.  The highest rank he held while serving on active duty was private first class/E-3.  He was later reduced to private/E-1.

2.  His records show his urinalysis specimen submitted on 21 November 2007 tested positive for marijuana.

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 11 January 2008 for wrongfully using marijuana.

4.  On 11 April 2008, he underwent a mental status evaluation.  The examiner indicated he was psychologically cleared for administrative separation.

5.  On 27 May 2008, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), by reason of misconduct for testing positive for marijuana.  The unit commander informed the applicant he was recommending that he receive a general discharge.

6.  On 27 May 2008, he was advised by consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under Army Regulation 635-200, paragraph 14-12c, and its effects, the rights available to him, and the effect of a waiver of his rights.  He elected not to submit a statement in his own behalf.

7.  On 29 May 2008, the separation authority directed his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to commission of a serious offense and that he receive a general discharge.

8.  On 11 June 2008, he was discharged accordingly.  The DD Form 214 issued to him shows he completed a total of 1 year, 10 months, and 23 days of active military service.  The narrative reason for separation listed in item 28 (Narrative Reason for Separation) was misconduct (drug abuse).  His DD Form 214 shows the entry "JKK" in item 26 (Separation Code) and the entry "4" in item 27 (Reentry Code).

9.  He provided the results from several drug tests in which he tested negative for drugs.

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 because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion, and absence without leave.  Action is to be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or unlikely to succeed.  Paragraph 14-3 states that 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 discharge if such is merited by the Soldier's overall record.  The separation reason in all separations authorized by this paragraph will be "misconduct – abuse of illegal drugs."

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), table 2-3, states that SPD code JKK denotes misconduct (drug abuse).

12.  The U.S. Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that SPD code JKK is assigned RE code 4.

13.  Pertinent Army regulations provide 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 Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  Table 3-1 states that RE code 4 applies to a Soldier who is separated from the last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant requested a change of his RE code, it is necessary to consider whether the reason for his discharge should be changed since the RE code is based on the reason for discharge.

2.  His records show he accepted nonjudicial punishment for wrongfully using marijuana and his reason for separation was misconduct (drug abuse).  As such, his separation code was administratively correct and in conformance with applicable regulations at the time of his separation.

3.  There is no evidence in the available record and the applicant provided no evidence that shows irregularity in the assignment of his RE code.  The applicant was disqualified from reenlistment based on misconduct and the disqualification is non-waivable under Army Regulations.

4.  The SPD/RE cross-reference table shows the applicant was assigned an SPD code JKK based on the reason for discharge.  As such he was properly assigned an RE code 4.

5.  While the applicant's efforts to show he no longer has a problem with drug abuse is noteworthy and his desire to enlist in the Army is commendable, these are insufficient to change a properly-assigned RE code.  As such, the applicant's RE code is correct and there is no reason to change it.

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 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)                                         AR20100016449



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ABCMR Record of Proceedings (cont)                                         AR20100016449



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