IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120011682 


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 correction of the Reentry (RE) Code from RE-4 to a more favorable code so he can reenter the military.

2.  The applicant states that he and his former spouse were on medication at the time.  He must have mixed-up the medications.  He appears to have failed a urinalysis due to her prescription.  He is not a drug addict by any means nor was he ever.  He is a smart, healthy, and athletic individual who would like another shot at being an ideal American Soldier.  He is not trying to make excuses but rather he is trying to improve his life for his lovely wife and child.  

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 16 June 2008 and he held military occupational specialty 91B (Wheeled Vehicle Mechanic).  

2.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon.  The highest rank/grade he attained during his military service was private first class/E-3. 

3.  On 17 February 2010, he participated in a unit urinalysis and his urine sample tested positive for amphetamines.

4.  On 20 May 2010, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using amphetamines.

5.  Prior to this NJP, on 17 May 2010, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) for misconduct - commission of a serious offense (drug use).  The immediate commander recommended a general discharge.  

6.  The applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant indicated:

* He understood if he had 6 years of total active and Reserve service, he could request his case be considered by an administrative separation board
* He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued 
* He understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws
* He elected not to submit a statement on his own behalf

7.  The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander indicated the applicant is not the type of Soldier he would retain.

8.  On 1 July 2010, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with a characterization of service as under honorable conditions (general).  On 21 July 2010, the applicant was accordingly discharged.  

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (drug use) with a general, under honorable conditions discharge.  This form further confirms he completed 2 years, 1 month, and 6 days of creditable active military service during the period under review.  This form also shows in:

* Item 26 (Separation Code) - "JKK" 
* item 27 (RE Code) the entry "4"

10.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

11.  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. 

* An 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
* An 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
* An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

12.  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 14-12(c) of Army Regulation 635-200 by reason of misconduct - drug abuse.




13.  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 the SPD code and a corresponding RE code.  The SPD code of "JKK" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed serious misconduct in the form of abusing illegal drugs.  He had an opportunity to submit a statement at the time and rebut the allegation, but he made no rebuttal.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

2.  His RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct, drug abuse.  Absent the drug abuse, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was drug abuse.  The only valid narrative reason for separation permitted under that paragraph is "misconduct (drug abuse)" and the appropriate RE code associated with this discharge is an RE-4.  Therefore, 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 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)                                         AR20120011682



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ABCMR Record of Proceedings (cont)                                         AR20120011682



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