BOARD DATE:	 22 March 2012

		DOCKET NUMBER:  AR20110018211 


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 recorded on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from RE "4" to RE "3."

2.  The applicant states:

* he does not feel his commanding officer gave him a fair chance to recover from his addiction
* he is a changed person who has realized his flaws and has done everything possible to correct them
* when he first entered the Army, he was trying to escape the violence of his neighborhood and community
* he turned to drugs at various points in his life as a means to deal with his violent surroundings and the deaths of close family members
* after he returned from his deployment to Afghanistan, he gave in to temptation and used drugs again as a means of dealing with grief
* he tried to stop using drugs but he relapsed
* he has been away from the Army for 5 years and in that time he has maintained consistent employment of increased responsibility
* he has successfully dealt with the death of family members and has not turned to drugs since his discharge
* he wishes to rejoin the Army so he can have a fulfilling career
* he is fully aware of the Army's drug policy and gives his word it will never be an issue again

3.  The applicant provides three third-party character reference letters.

CONSIDERATION OF EVIDENCE:

1.  On 8 December 2003, the applicant enlisted in the U.S. Army Reserve and he received an uncharacterized discharge on 14 July 2004.

2.  On 22 June 2005, he enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 92Y (Unit Supply Specialist).

3.  His record shows he deployed to Afghanistan from on or about 18 December 2005 to on or about 28 March 2006.

4.  On 14 June 2006, he received developmental counseling for testing positive for methylenedioxymethamphetamine (MDMA – "Ecstasy") during a random urinalysis test.  He was flagged for adverse action under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) and he was advised that continued conduct of this nature could result in separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

5.  On 12 July 2006, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using MDMA, a controlled substance, between on or about 25 May 2006 and on or about 31 May 2006.

6.  Separation proceedings were initiated against the applicant.  On 2 October 2006, an administrative law attorney in the Office of the Staff Judge Advocate, Fort Lewis, WA, reviewed the proposed separation action and found it legally insufficient due to procedural errors in the notification process.

7.  On 10 October 2006, the applicant was notified by his immediate commander of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense) – wrongful use of MDMA.  On 10 October 2006, the applicant acknowledged receipt of the notification memorandum.

8.  On 16 October 2006, the applicant acknowledged he had been advised by his counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to not submit a statement in his own behalf.

9.  On 16 October 2006, the applicant's immediate commander recommended his discharge under the provisions of Army Regulation 635-200, chapter 14.  On 23 October 2006, the separation authority approved the applicant's discharge due to misconduct (drug abuse) and directed issuance of a general discharge under honorable conditions.

10.  On 17 November 2006, he was discharged accordingly.  The DD Form 214 issued at the time of his discharge shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general under honorable conditions character of service.  He completed 1 year, 4 months, and 26 days of net active service during this period.  The highest rank/grade he attained while serving on active duty was private/E-2.  His DD Form 214 further shows:

* in item 26 (Separation Code) that he was assigned a separation program designator (SPD) code of "JKK"
* in item 27 (Reentry Code) that he was assigned an RE code of "4"
* in item 28 (Narrative Reason for Separation) that he was separated by reason of "misconduct (drug abuse)"

11.  On 21 January 2011, the Army Discharge Review Board (ADRB) considered his request for an upgrade of his discharge and found his request to have merit, due to the government's violation of limited use information in his discharge proceedings.  Accordingly, the ADRB upgraded his discharge to fully honorable; however, the ADRB further determined that the reason for the applicant's discharge was fully supported by the record and voted not to change it.

12.  The applicant provides three third-party letters of character reference that attest to his strength of character, positive personal demeanor, and attributes as a friend and co-worker.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

14.  Chapter 14 establishes policy and prescribes procedures for separating Soldiers for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a Soldier 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 appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  A general court-martial convening authority may approve or delegate approval authority for an honorable discharge.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states individuals will be assigned reentry codes based on their service records or the reason for discharge prior to discharge or release from active duty. 
Chapter 3 prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes.  The RE code of "4" applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications.

16.  Army Regulation 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  Table 2-3 (SPD Codes Applicable to Enlisted Personnel) notes that "JKK" is the appropriate SPD code for individuals separated for misconduct (drug abuse).

17.  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 in effect at the time of his discharge shows that SPD code "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's records show he tested positive for MDMA and he was discharged for his usage.  He provided no evidence to show the RE code issued to him at the time of discharge was improper or inequitable or should be changed now.  The applicant's separation code of "JKK" is consistent with the reason for his separation "misconduct – drug abuse" and the RE code of "4" is consistent with the separation code; therefore, the applicant is not entitled to an upgrade of his RE code.

3.  The applicant submitted three third-party letters of character reference that attest to his strength of character, positive personal demeanor, and attributes as a friend and co-worker.  Notwithstanding these positive reflections on the applicant's character, the evidence he submitted does not negate the misconduct that resulted in his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110018211



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