IN THE CASE OF:	  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130010315 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge and a change to his reentry eligibility (RE) code in order to reenter the military.

2.  The applicant states he believes the RE code should be changed because everyone makes mistakes and everyone deserves a second chance.  He contends that those mistakes do not define a person and he is asking for another chance to serve his country more dutifully and diligently.  He hopes to be provided the chance in order to move forward and to prove to his family and his peers that he is ready to move his life in a positive direction.  He adds that he made some mistakes while he was on active duty which almost ruined his life and hindered his career but now that he is older, he feels he has grown and has learned from his mistakes.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a third-party statement of support. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 March 2006.  

2.  He accepted nonjudicial punishment (NJP) on 27 February 2008 for wrongful use of marijuana.  

3.  On 28 May 2008, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for commission of a serious offense.  The commander cited as the specific reason for the proposed separation the fact that the applicant tested positive for marijuana during a urinalysis.

4.  On 13 June 2008, the appropriate separation authority approved the separation action.  However, the separation authority indicated that the directed separation would be suspended until 13 December 2008, at which time, if there was no evidence of further misconduct or action which constituted substandard performance of duty, the separation action would be automatically remitted.  

5.  On 3 September 2008, the applicant departed absent without leave (AWOL).  He returned to military control on 16 September 2008.  

6.  On 29 September 2008, the applicant consulted with legal counsel and acknowledged receipt of the proposed separation action.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.

7.  He accepted NJP on 20 October 2008 for the AWOL offense.

8.  On 28 October 2008, his immediate commander initiated action to vacate the previously-suspended execution of his approved separation under the provisions of Army Regulation 635-200, paragraph 14-12c.  The commander cited as the reason for the proposed action the fact that the applicant was AWOL during the period 3-16 September 2008.  

9.  On 18 November 2008, the separation authority directed that the suspension of the approved separation be vacated and the separation executed with service characterized as general, under honorable conditions.  

10.  The applicant's DD Form 214 confirms he was discharged on 5 December 2008 under the provisions of Army Regulation 635-200, paragraphs 14-12c with his service characterized as under honorable conditions.  His DD Form 214 further shows in:

* block 26 (Separation Code) the entry "JKK"
* block 27 (Reentry Code) the entry "4"
* block 28 (Narrative Reason for Separation) the entry "Misconduct (Drug Abuse)"
11.  He provides a third-party letter of support, authored by his former first sergeant (1SG), in which his former 1SG attests to the applicant's positive qualities as a Soldier and recommends him for any position that requires a committed, loyal, and dedicated worker.  

12.  The Army Discharge Review Board denied the applicant's request for a discharge upgrade and for a change of his RE code on 1 December 2010.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 provides for separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  

   a.  RE-4 applies to persons separated from last period of service with a nonwaivable disqualification.
   
   b.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	c.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, as long as all other qualifications are met.
16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of JKK as shown on the applicant's DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is misconduct (drug abuse) and the authority for discharge is Army Regulation 
635-200, paragraph 14-12c.

17.  The SPD Code/RE Code Cross Reference Table states that when the SPD code is JKK then an RE code of 4 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade and for a change of his RE code has been carefully considered.  

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The letter of support he submitted was considered; however, his disciplinary history includes an NJP for wrongful use of marijuana and NJP for an AWOL offense.  This record of indiscipline clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his discharge accurately reflects the overall quality of his service and there is an insufficient evidentiary basis to support upgrading his discharge to honorable.

4.  Evidence shows he was properly separated under the provisions of Army Regulation 635-200, paragraph 14-12 by reason of misconduct (drug abuse).  Based on the authority and reason for separation, he was properly assigned an SPD code of JKK and a corresponding RE code of 4 in accordance with the applicable regulations.  Therefore, without evidence showing that an error exists on his DD Form 214 or that his discharge was in error or unjust, there is no basis to change his RE code.

5.  Based on the foregoing, there is no basis to grant 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)                                         AR20130010315



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ABCMR Record of Proceedings (cont)                                         AR20130010315



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