IN THE CASE OF:	  

		BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20110000607 


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, through his Member of Congress, an upgrade of his Reentry (RE) Code from an RE-4 to a more favorable code. 

2.  The applicant states he failed a urinalysis and that this was his first and only infraction while on active duty.  He does not understand why he was assigned an RE code of 4 and Separation Code of "JKK."  He adds that during punishment, he was ordered to complete a second urinalysis, which he passed.  He believes his discharge was punitive. 

3.  The applicant did not provide any additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 21 February 2007.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Wheeled Vehicle Mechanic).  He was assigned to E Company, 407th Brigade Support Battalion, Fort Bragg, NC.

2.  The applicant’s records further show he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.

3.  On 8 September 2009, he participated in a unit urinalysis and his urine sample tested positive for marijuana.
4.  On 30 September 2009, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of $699.00 pay per month for 2 months, and restriction and extra duty.

5.  On 27 October 2009, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  Specifically, he cited the applicant's having tested positive for the use of illegal drugs.  He recommended a general, under honorable conditions discharge.

6.  On 27 October 2009, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further elected to submit a statement in his own behalf.

7.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  In his statement, the applicant indicated he was aware that the substance was illegal and that he had not been tricked into taking the illegal substance.  He added that he had no excuse but asked for a second chance to prove he was a good Soldier. 

9.  On 27 October 2009, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended a general, under honorable conditions discharge.

10.  On 12 November 2009, his intermediate commander recommended approval of his discharge with the issuance of an under honorable conditions (general) discharge. 


11.  On 13 November 2009, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as general, under honorable conditions.  Accordingly, the applicant was discharged on 7 December 2009.  

12.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in accordance with paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct - commission of a serious offense (drug abuse).  This form further confirms he completed 2 years, 9 months, and 17 days of creditable active service.  Additionally, this form shows in:

* Item 26 (Separation Code), the entry "JKK"
* Item 27 (Reentry Code), the entry "4"

13.  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.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It 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.  Table 3-1 included a list of the Regular Army 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 not considered fully qualified for reentry or continuous services at time of separtion, and the disqualification is not wiavable.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKK" SPD code is the correct code for Soldiers separating under chapter 14-12c (2) of Army Regulation 635-200 by reason of misconduct - commission of a serious offense (drug abuse).

16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant tested positive for wrongfully using illegal drugs.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The evidence of record confirms his Separation and RE codes were assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his illegal use of drugs.  Absent the illegal use of drugs, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his illegal use of drugs.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct (Drug Abuse)." 

3.  The appropriate Separation Code associated with this type of discharge is "JKK" and the corresponding RE code associated with this discharge is RE-4, both of which are correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.


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)                                         AR20110000607



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ABCMR Record of Proceedings (cont)                                         AR20110000607



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