IN THE CASE OF:	  

		BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100023575 


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 reconsideration of the Board's denial of his previous request for change of his reentry (RE) code of 4 so he can reenter military service.

2. The applicant states he was not given proper representation because his lawyer did not take the time with him to type up a proper letter to his commander explaining his situation.  He adds that he was not afforded a final interview with the brigade commander.  He contends that misconduct does not always result in an RE code of 4.

3.  The applicant provides:

* page 2 of a DD Form 2808 (Report of Medical Examination)
* a DA Form 2822-R (Report of Mental Status Evaluation)
* Headquarters, U.S. Army Infantry Center, Fort Benning, GA, memorandum for the applicant, subject: Alcohol and Drug Abuse Prevention Training (ADAPT)
* printout of drug testing results
* three DA Forms 4856 (Developmental Counseling Form)

4.  He also provided his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support which he provided with his initial application.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090021878, on 10 June 2010.

2.  The DD Form 2808, DA Form 2822-R, ADAPT memorandum, printout of drug testing results, and the three DA Forms 4856 provided by the applicant are new evidence which were not previously considered and warrants consideration by this Board.

3.  On 22 September 2005, the applicant enlisted in the Regular Army.  He did not complete initial entry training.

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on 1 February 2006 for wrongfully using cocaine.

5.  On 1 March 2006, he was advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense, and its effects, the rights available to him, and the effect of a waiver of his rights.

6.  On 18 April 2006, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct (drug abuse).  Accordingly, he was issued an uncharacterized character of service, a separation program designator (SPD) Code of JKK, and an RE code of 4.

7.  He provided a copy of the drug testing results showing he had tested positive for cocaine.  This document contains a hand-written note with the applicant's signature stating there is no percentage amount listed and that the chemicals in cocaine being tested can be found in household foods, drinks, and certain health vitamins.

8.  Two of the DA Forms 4856 contain hand-written notes signed by the applicant indicating there was no attempt or effort towards rehabilitating him.

9.  Headquarters, U.S. Army Infantry Center memorandum for the applicant, subject: ADAPT, dated 31 January 2006, shows he completed 16 hours of training in response to his drug incident.


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Paragraph 14-12c(2) states abuse of illegal drugs is serious misconduct.

11.  The letter of support provided by the applicant from a U.S. Air Force retired master sergeant stated that the applicant wants another chance to serve his country.  He further stated that the applicant is very sincere and passionate and was open and honest about the mistake that he made.  He adds that the applicant is very sorry for what he did and vows to make amends if given another chance.

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 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.

13.  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 Regular Army (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.

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 record shows he accepted nonjudicial punishment for wrongfully using cocaine and his reason for separation was misconduct (drug abuse).  His record further shows that he completed training in response to his drug incident, he received counseling, and he was permitted to consult with counsel regarding his separation.  As such, evidence shows he was properly discharged and 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 of JKK based on the reason for discharge.  As such, he was properly assigned an RE code of 4.

5.  While the applicant admits his mistake, wants to make amends, and desires to reenter military service, these are insufficient to change a properly-assigned RE code.  Therefore, 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090021878, dated 10 June 2010.



      __________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)                                         AR20100023575



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ABCMR Record of Proceedings (cont)                                         AR20100023575



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