IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120004608 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his reentry (RE) code from RE-4 to a more favorable RE code.

2.  The applicant states, in effect, the Army Discharge Review Board (ADRB) determined an administrative error was present on his DD Form 214 and unjustly changed his RE code from RE-4 to RE-3.

3.  The applicant provides a letter from the ADRB, dated 28 November 2011, and a portion of ADRB case number AR20110010211.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 6 November 2001 and held military occupational specialty 11B (Infantryman).  He was assigned to A Company, 1st Battalion, 27th Infantry Regiment, Schofield Barracks, HI, from 
5 April 2002 to 23 May 2003.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

2.  His record contains a DA Form 4858 (Developmental Counseling Form), dated 10 January 2003, wherein his squad leader counseled him for testing positive for marijuana on a urinalysis which was conducted on 12 December 2002.  This form further states he had previously received disciplinary actions for the abuse of alcohol, and was currently enrolled in the Army Substance Abuse Program (ASAP).  As such, he could be considered a rehabilitation failure.
3.  His record contains a DA Form 2624 (Specimen Custody Document - Drug Testing) showing his urine specimen was collected on 20 December 2002 and was tested on 8 January 2003.  The test results show his urine tested positive for marijuana.

4.  His record contains a DA Form 2627 (Record of Processing Under Article 15, Uniform Code of Military Justice (UCMJ)), showing he accepted NJP under the provisions of Article 15 of the UCMJ on 29 January 2002 for two incidents of wrongfully using marijuana.

5.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 30 January 2002.  This form shows he displayed normal behavior, was fully alert, fully oriented, his mood was unremarkable, he had a clear thinking process, his thought content was normal and he had a good memory.  It was the medical official's impression that he had the mental capacity to understand and participate in proceedings and he met retention standards.  Based on the medical official's assessment he was psychiatrically cleared for any administrative action deemed appropriate by her command.

6.  He received a medical examination, on 31 January 2002, for the purpose of separation and was found to be medically fit.

7.  On 21 April 2003, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c (Misconduct - Commission of a Serious Offense) of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), with an other than honorable characterization of service, for testing positive for the wrongful use of marijuana.  

8.  On 21 April 2003, he acknowledged receipt of the commander's intent to separate him and he was advised of the basis for the contemplated separation action, the type of discharge he could receive, and of the procedures/rights available to him.  

9.  On 21 April 2003, he consulted with legal counsel and was advised of 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 acknowledged he understood he could encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He elected not to submit a statement on his own behalf.


10.  On 5 May 2003, the separation authority approved his discharge action under the provisions of paragraph 14-12c of Army Regulation 635-200 and directed he be discharged with a general under honorable conditions characterization of service.  Accordingly, he was discharged on 23 May 2003.  

11.  His DD Form 214 shows he was discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2), by reason of "Misconduct" with a characterization of service of general under honorable conditions, a separation code of "JKK," and an RE code of "3."  This form further confirms he completed a total of 1 year, 6 months, and 18 days of net active service, 1 year, 1 month, and 19 days of which were credited as foreign service.  

12.  On 1 May 2011, he applied to the ADRB and requested his general under honorable conditions discharge be upgraded to honorable.  During the processing of his request, the ADRB discovered an administrative error in item 27 (RE code) of his DD Form 214.  The RE code had mistakenly been entered on his DD Form 214 as RE-3 instead of RE-4.  The ADRB issued him a new DD Form 214 to correct the administrative error, determined he was otherwise properly and equitably discharged, and denied his request to upgrade the characterization of his service on 28 November 2011.

13.  Army Regulation 635-200, section III (Acts or Patterns of Misconduct), paragraph 14-12c(2), in effect at the time, states 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 MCM.  Abuse of illegal drugs is serious misconduct.  Soldiers in paragraph14-2c(2), against whom charges will not be referred to a court-martial authorized to impose a punitive discharge, will be processed for separation under paragraph 14-12c, as applicable.  The immediate and intermediate commanders will recommend separation or retention. Recommendations will be made as to characterization of service.  The separation reason in all separations authorized by this paragraph will be "misconduct-abuse of illegal drugs."  Second-time drug offenders must be processed for separation after a second offense.

14.  Army Regulation 635-5-1 (Separation Program Designators) states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The regulation in effect at the time of his discharge states "JKK" is the appropriate code for individuals who were administratively discharged in accordance with Army Regulation 635-200, paragraph 14-12c(2) for misconduct.  

15.  The Separation Program Code Designator Code (SPD)/RE Code Cross-Reference Table, in effect at the time, shows an RE code of 4 is used when a Soldier receives the SPD code of "JKK" for misconduct in accordance with Army Regulation IAW AR 635-200, paragraph 14-12c(2).

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, determines Regular Army and U.S. Army Reserve reentry eligibility.  An RE code of 4 applies to person separated from last period of Service with a nonwaivable disqualification.  Soldiers receiving an RE code of "4" are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the ADRB incorrectly adjusted his RE code from RE-3 to RE-4; however, he has provided no evidence to show the adjustment made by the ADRB was incorrect or unjust.

2.  He was discharged under chapter 14-12c(2) for a serious offense, misconduct-abuse of illegal drugs.  Army regulations state an SPD code of "JKK" and the RE code of "4" are the only appropriate codes to be used for this type of discharge.

3.  The authority who issued him his DD Form 214 inadvertently entered an incorrect RE code on his DD Form 214.  The ADRB correctly determined the RE code was administratively incorrect and took appropriate corrective actions.  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)                                         AR20120004608





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ABCMR Record of Proceedings (cont)                                         AR20120004608



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