BOARD DATE: 19 July 2011
DOCKET NUMBER: AR20110001498
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 his reentry eligibility (RE) code be changed from 4
to 3.
2. The applicant states he was discharged when another Soldier who tested positive for cocaine was allowed to continue serving.
3. The applicant provides no documentary evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he enlisted in the Army National Guard (ARNG) on 20 November 2008 and he entered active duty for training on 24 July 2009.
2. On 3 January 2010, the applicant underwent drug testing. A laboratory report shows the applicant tested positive for tetrahydrocannabinol (marijuana) on 5 February 2010.
3. On 2 March 2010, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for using marijuana between on or about 5 December 2009 and on or about 3 January 2010. His punishment for this offense was a reduction to private/E-1, a forfeiture of $723.00 pay for 2 months, and 45 days of extra duty and restriction.
4. On 17 March 2010, the applicant's unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense based on the use of illegal drugs.
5. The applicant acknowledged receipt of the notification, waived his right to counsel, and elected not to submit statements in his own behalf contingent on receiving a general discharge under honorable conditions.
6. On 24 March 2010, the separation authority directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, under the terms of his conditional waiver and directed a GD. On 1 April 2010, the applicant was released from active duty and discharged as a Reserve of the Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned a separation program designator (SPD) code of JKK and an RE code of 4. He was discharged from the Army National Guard on 18 May 2010.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.
8. Army Regulation 635-200, paragraph 14-12c, provides for the separation of members for misconduct based on the commission of a serious offense. Paragraph 14-12c(2) identifies abuse of illegal drugs as serious misconduct and provides for separation for this reason under paragraph 14-12c. It further states that Soldiers are required to be processed for separation for abuse of illegal drugs. "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.
9. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE-4 applies to persons who have a nonwaivable disqualification.
10. 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 that 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 abuse of illegal drugs. The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-4 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 14-12c(2), by reason of misconduct (drug abuse).
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his RE code be changed from 4 to 3 because another Soldier used cocaine and was not discharged has been carefully considered. However, there is insufficient evidence to support this claim. The Board reviews each case on its own merits; what may or may not have happened in similar cases has no bearing on the merits of the applicant's case.
2. The applicant's service was in fact characterized as general under honorable conditions based on his generally good conduct. This attests to the fact he was sufficiently mature to serve without committing the drug abuse misconduct that led to his discharge, which was a personal choice he made knowing it would jeopardize his military career.
3. The applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.
4. The record confirms the applicant was separated by reason of misconduct (drug abuse) based on his wrongful use of cocaine. He was appropriately assigned an SPD code of JKK based on the authority and reason for his separation and an RE code of 4 based on his abuse of illegal drugs. Absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting 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 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) AR20110001498
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ABCMR Record of Proceedings (cont) AR20110001498
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