IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100022175 


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 a change of his reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from an RE code 4 to an RE code that may qualify him for a waiver to reenter the Army.

2.  He states that a rehabilitation program was never explained or offered.  He adds that other Soldiers in his unit had a chance to complete a drug abuse program which enabled them to stay on active duty. 

3.  He provides no additional evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 19 April 2006 for a period of 4 years and 18 weeks.  He completed training and he was awarded military occupational specialty (MOS) 88M (motor transport operator).

2.  On 22 December 2006, the Installation Biochemical Testing Coordinator for Fort Bragg, NC, informed the applicant's unit commander that positive drug testing results were received on the applicant for the use of cocaine.  He also advised the commander that Army Regulation 600-85 (The Army Substance Abuse Program (ASAP)) required commanders to refer individuals to their respective ASAP Services for screening and assessment to determine the extent of drug/use abuse.

3.  On 22 January 2007, nonjudicial punishment was imposed against him for wrongfully using cocaine between 15 December 2006 and 18 December 2006.

4.  On 19 February 2007, his unit commander notified him of the intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, commission of a serious offense due to his positive urinalysis for cocaine.

5.  On 20 February 2007, he consulted with military counsel.  After being advised of the basis for the contemplated separation action, its effects and the rights available to him, he elected not to submit a statement in his behalf.  He acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he may make an application to the Army Discharge Review Board (ADRB) or to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge.  He acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded.  He also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

6.  On 22 February 2007, the separation authority approved his recommendation for discharge under the provisions of Army Regulation 635-200, paragraph
14-12c, and directed the issuance of a General Discharge Certificate.

7.  On 12 March 2007, he was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drug abuse).  His service was characterized as under honorable conditions (general).  Item 26 shows he was assigned a separation code of "JKK" and item 27 (Reentry Code) shows the entry "4."  He was credited with completing 10 months and 24 days of active service.

8.  On 1 September 2009, the applicant applied to the ADRB for an upgrade of his general discharge to an honorable discharge.  On 7 July 2010, after carefully reviewing the applicant's military records and the ADRB determined that his characterization of service was improper.  It was noted that the applicant's command introduced limited use information into the discharge process.  However, use of limited use information mandates award of a fully honorable characterization of service.  Therefore, the ADRB upgraded the applicant's discharge to fully honorable.  However, the board found that the reason for discharge was fully supported by the record and voted not to change it.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Paragraph 14-12c states that specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

10.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  Although evidence of record shows the ADRB upgraded the applicant's discharge from a general to an honorable discharge, the board found the reason for his discharge was both proper and equitable.  The available evidence shows he was separated due to drug abuse.  Therefore, he was assigned an RE code of 4 which is consistent with the reason for separation.  He has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE code is in error or unjust.  Therefore, he has not established a sufficient basis for changing his existing RE code.

2.  Army Regulation 600-85 requires commanders to refer individuals who test positive for use of illegal drugs to their respective ASAP Services for screening and assessment to determine the extent of drug/use abuse.  Part of this process is to inform Soldiers who use drugs of their options for rehabilitative counseling and training.  Although he attests a rehabilitation program was never explained or offered to him as it was to Soldiers in his unit; he has not provided any evidence in support of his contention.  As such, government regularity insofar as the ASAP process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the ASAP process.

3.  By violating the Army's policy not to abuse illegal drugs, he compromised the special trust and confidence placed in him as a Soldier.  He had the duty to support and abide by the Army's drug abuse policies.  By abusing cocaine, the applicant knowingly risked his military career.

4.  The available evidence shows the command attempted to assist the applicant by providing him alcohol/drug counseling and by the imposition of NJP.  The applicant was enrolled in the ADAPCP and he was aware of the consequences of any action which would demonstrate an inability or refusal to participate in, cooperate in, or successfully complete the program.  The applicant failed to respond appropriately to these efforts.

5.  Absent any evidence of error or injustice in the discharge process, the assigned RE code is proper and equitable based on the authority and reason for discharge.  As a result, there is an insufficient evidentiary basis to support a change of the RE code. 

6.  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)                                         AR20100022175



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ABCMR Record of Proceedings (cont)                                         AR20100022175



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