IN THE CASE OF:	  

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110006227 


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 from 4 to either 2 or 3.

2.  He states:

* he has learned his lesson 
* he wants to reenlist in order to take care of his wife and kids
* it was only weed (marijuana), not hard core drugs
* an RE code of 4 is too harsh
* being banned (from the military) for life is just wrong 

3.  He provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 16 November 2007.

2.  A DA Form 4856 (Developmental Counseling Form), dated 15 October 2008, shows he was command referred into the Army Substance Abuse Program and required to attend all sessions as a result of testing positive on a urinalysis for marijuana.

3.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 26 August and 25 September 2008 and between 15 October and 14 November 2008 respectfully. 

4.  On 31 December 2008, he was notified by his unit commander that separation actions were being initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct for abuse of illegal drugs.

5.  On the same date, he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights.  He did not submit a statement in his own behalf.

6.  On the same date, his company commander recommended approval of his separation with a general, discharge under honorable conditions.

7.  On 16 January 2009, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed that he be discharged with a characterization of service of general, under honorable conditions.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 1 year, 2 months, and 19 days of active military service.  The DD Form 214 also shows his character of service as "under honorable conditions (general)"; the separation authority as "Army Regulation 635-200, paragraph 14-12c(2)"; the separation program designator (SPD) as "JKK"; his RE code as "4"; and the narrative reason for his separation as "misconduct (drug abuse)."

9.  On 2 July 2010, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

10.  References:

	a.  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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

	b.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 (Narrative Reason for Separation) will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1 (SPD Codes).

	c.  Army Regulation 635-5-1 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.  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), for misconduct (drug abuse).  The SPD/RE code Cross Reference Table stipulates that RE-4 will be assigned to members with SPD code JKK separated under these provisions.

	d.  Pertinent Army regulations provide 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, 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.

		(1)  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  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.

		(3)  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

		(4)  RE-2 is no longer used, effective 1995

DISCUSSION AND CONCLUSIONS:

1.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his discharge for misconduct for two instances of drug abuse.  There is no evidence of record and the applicant did not provide any evidence as a basis to warrant a change to his reason for separation.

2.  SPD code JKK applies to persons who are administratively discharged for misconduct (drug abuse) under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  The SPD/RE code Cross Reference Table shows that RE code 4 is the applicable RE code assigned to individuals discharged for misconduct for drug abuse.  Therefore, there is no basis for granting the applicant's requested relief in this case.

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)                                         AR20110006227



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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