BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100022453 


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 an upgrade of his reentry eligibility (RE) code from 4 to 3 in order to make him eligible for enlistment.

2.  He states, in effect, that while he was serving in Germany, his father became ill.  He submitted several requests for a hardship discharge since there was no one else fit enough to run the family business.  After several months, the paperwork was still at the company level and had not been processed.  He felt he needed to get home to try and help his family.  He began to make mistakes with drinking and drug use.  He was unsure of what course he could take.  He fully understands it was neither a good nor a responsible decision.  He finds himself looking back now with a lot of regret.  If given the chance, he would proudly serve his country with honor and pride.  He concludes that he enjoyed being a Soldier and with a family of his own now, he knows that he has grown and could do it responsibly.

3.  He provides:

* two pages of his discharge packet
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)






CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) on 22 November 2005.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of his discharge.

2.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniformed Code for Military Justice (UCMJ) for violating the following Articles of the UCMJ:

* Article 107 - by making a false statement with the intent to deceive
* Article 112a - by wrongfully using marijuana
* Article 134 - by being drunk and disorderly

3.  His record contains a memorandum rendered by the Clinical Director of the U.S. Army Garrison Wiesbaden Army Substance Abuse Program (ASAP), dated 11 June 2007, Subject:  Summary of Treatment for [applicant's name and Social Security number].  This memorandum summarizes his ASAP participation history and in pertinent part shows:

	a. On 1 July 2006 he was apprehended for alcohol-related disorderly conduct and as a result was required to complete the 2-day Prime for Life training course which teaches and encourages responsible, low-risk drinking.

	b.  On 2 March 2007, he was Command-referred to ASAP for driving while under the influence of alcohol.  Although he felt he was forced to participate in ASAP, he agreed to comply with the treatment objective including refraining from use of alcohol and illegal drugs.

	c.  On 30 March 2007, he was enrolled in ASAP for a minimum of 3 months outpatient treatment and was required to undergo Rehabilitation Drug testing.

	d.  On 18 April 2007, his provider was informed by his commander that the Rehabilitation Testing done on 30 March 2007, resulted in a positive for marijuana.

	e.  On 20 April 2007, a telephone conference with his commander and supervisor revealed that in addition to using illegal drugs, he had also continued to drink to intoxication while enrolled in ASAP.


	f.  On 26 April 2007, he firmly and politely requested to be disenrolled from ASAP refusing all further assistance.  He signed a letter of disenrollment against medical advice verbalizing taking full responsibility for the consequences of his action.

	g.  Based on his unwillingness to continue treatment despite the efforts of the ASAP counselor discussing the potential consequences to career, health, and safety as a result of further alcohol-related incidents, and despite the encouragement to continue enrollment, further efforts of rehabilitation were determined to be futile.

4.  His record contains a Memorandum of Reprimand rendered by the Commanding General of the 1st Armored Division on 18 July 2007.  He was reprimanded for operating a motor vehicle while intoxicated on 19 February 2007.

5.  On 30 July 2007, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), for misconduct (Drug Abuse).

6.  He was advised of his rights and the impact of the discharge.  He accepted his right to consult with legal counsel and submitted a statement in his own behalf, but waived consideration of his case by or personal appearance before an administrative separation board.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.

7.  On 30 July 2007, the unit commander recommended that he be separated from the service and that further rehabilitative efforts be waived.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

8.  The separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), and that he be furnished a general under honorable conditions characterization of service.

9.  On 6 September 2007, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with an SPD code of JKK and an RE code of 4
* his narrative reason for separation was "MISCONDUCT (DRUG ABUSE)"

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct for which Soldiers may be separated prior to their normal expiration of term of service.  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 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.

11.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JKK was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for Misconduct (Drug Abuse).

12.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 4 was the proper code to assign to members separated with an SPD code of JKK.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.


	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  This includes anyone with a Department of the Army-imposed bar to reenlistment in effect at the time of separation or separated for any reason (except length of service retirement) with 18 or more years of active Federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded in order to make him eligible for enlistment were carefully considered and found to lack merit.

2.  He contends his misconduct was the result of his desire to go home and run the family business is noted.  However, it does not mitigate his misconduct.  

3.  His record reveals a disciplinary history that includes numerous adverse actions.

4.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).  The evidence also shows the applicant was assigned the appropriate SPD code of JKK and RE code of 4 at the time of his discharge.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgraded RE code.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

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)                                         AR20100022453





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ABCMR Record of Proceedings (cont)                                         AR20100022453



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