IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100025001 


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 be changed.

2.  The applicant states he would like a second chance to represent his country.  He states he was young-minded at the time and was experiencing some adverse side effects from the medication Ambien he was taking.

3.  The applicant provides a copy of a Drugs.com printout about the side effects of Ambien which include behavioral, mental, or mood changes.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 11 May 2006 under the Alternate (Split) Training Program.

2.  On 7 June 2006, he was ordered to initial active duty for training (IADT).  He completed basic combat training and was released to his ARNG unit on 3 August 2006.  The second period of IADT is not of record.

3.  Effective 31 March 2008, the applicant was discharged from the ARNG and Reserve of the Army for the purpose of enlisting in the Regular Army.  He enlisted in the Regular Army on 1 April 2008.

4.  The applicant's integrated Personal Electronic Records Management System records do not contain any significant documentation related to his active duty service, his administrative discharge, or any medical records.

5.  The applicant was discharged on 28 May 2009 under other than honorable conditions with a separation program designator (SPD) of JKK and an RE code of 4.  The authority and narrative reason for his discharge are Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), for misconduct – drug abuse.  His date of entry on active duty is incorrectly listed as the date of his ARNG IADT, though his period of active duty correctly reflects 1 year and 1 month.

6.  The applicant has not provided and the record does not contain any documentation to show he was prescribed Ambien or was suffering from any side effects from that medication.  [Ambien is for the treatment of insomnia characterized by difficulties with sleep onset and/or sleep maintenance.]

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12 states Soldiers are subject to administrative separation for misconduct for the commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Manual for Courts-Martial.  Paragraph 14-12c(2) states abuse of illegal drugs is considered serious misconduct.

8.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214 (Certificate of Release or Discharge from Active Duty).  It indicates that a separation under the provisions of Army Regulation 635-200, chapter 14, mandates an SPD of JKK.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, U.S. Army Reserve, and Army National Guard.  The SPD/RE Code Cross-Reference Table that indicates an SPD of JKK requires an RE code of 4.

10.  Army Regulation 601-280 (Army Retention Program) states the RE codes contained in military discharge documents determine whether or not one may reenter a military service at a later time.  In general, those who receive an Army RE code of 1 may enlist/reenlist in the Army or another service with no problem.  Individuals with an RE code of 3 can normally enlist/reenlist, but will probably require a waiver.  Individuals with an Army RE code of 4 are normally not eligible to enlist/reenlist in the Army or join another service.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he would like a second chance to represent his country.  He implies his misconduct was the result of the side effects of the medication he was taking.

2.  A separation under Army Regulation 635-200, paragraph 14-12, requires an SPD of JKK which in turn requires an RE code of 4.  In order to justify an RE code change, the reason for the applicant's discharge would have to be changed.

3.  Failing evidence to show the applicant was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, the unsupported inference that he was suffering medication side effects does nothing to demonstrate an injustice in the discharge.  The Army rejects the implication that illegal drug abuse necessarily mitigates both itself and the effects thereof.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100025001



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ABCMR Record of Proceedings (cont)                                         AR20100025001



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