IN THE CASE OF:	  

		BOARD DATE:	  29 October 2014

		DOCKET NUMBER:  AR20140003901 


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 discharge be upgraded to an honorable discharge.  He also requests that his reentry eligibility (RE) code be changed to a 1 or 2.

2.  The applicant states:

* he was discharged due to his having had a female in his bed 
* five witnesses indicated that the female sneaked into his bed, had many issues, had been in trouble many times, and was discharged due to her behavior 
* he wants to return to the National Guard unit he was assigned to prior to his discharge
* he is asking that his RE code be changed so he can get back to the thing he once loved
* he has maintained a job at Chase Bank since he has been home and has not been in any more trouble
* he is asking that the Board take this into consideration and allow him to reenlist in the Army  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).


CONSIDERATION OF EVIDENCE:
1.  The applicant enlisted in the California Army National Guard (CAARNG) on 
4 December 2009.  He was ordered to active duty for training on 19 October 2010. 

2.  His record contains a U.S. Army Criminal Investigation Command's Form 94 (Agent's Investigation Report), dated 30 March 2011, which shows that the applicant admitted to taking one pill from a fellow Soldier.  This report also shows that other Soldiers stated that the applicant admitted that he used Oxycontin and asked if he wanted to buy some from a civilian male.

3.  His record contains a Report of Mental Status Evaluation, dated 17 June 2011.  He was diagnosed with an adjustment disorder with disturbance of mood, not deemed disqualifying by his current mental health provider.  The examining physician determined he was mentally responsible and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

4.  On 24 June 2011, 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(2), for misconduct - abuse of illegal drugs. 

5.  On the same date, his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to wrongful possession and use of Oxycontin, having a female in his bed, and missing a bed check.  The commander also recommended a general, under honorable conditions discharge.

6.  On the same date, he acknowledged receipt of the proposed separation action against him.  He consulted with legal counsel and 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.  He did not submit a statement on his own behalf.

7.  His record contains a memorandum from the U.S. Trial Defense Service, Southwest, dated 9 July 2011, Subject:  Matters in Defense of [the applicant], wherein his trial defense attorney states that against his advice, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) after being charged with violation of Article 112a (possession, intent to distribute, and use of a controlled substance).

8.  The intermediate commander recommended approval of his general, under honorable conditions discharge.

9.  The separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with an under honorable conditions (general) discharge.

10.  On 2 August 2011, the applicant was discharged from the Reserve of the Army and returned to the ARNG accordingly.  He completed 1 year, 4 months, and 3 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 
14-12c(2) with service characterized as general, under honorable conditions.  He was assigned a separation program designator (SPD) code of JKK, an RE code of 4, and a narrative reason of separation of misconduct (drug abuse).

11.  On 3 August 2011, he was discharged from the CAARNG.  His National Guard Bureau Form 22E (Report of Separation and Record of Service) shows that the authority and reason for his discharge was Section 260 California M/VC and National Guard Regulation 600-200, paragraph 6-35e; entry level status and conduct.  His character of service was uncharacterized and he was assigned an RE code of 3.

12.  On 25 February 2013, the Army Discharge Review Board (ADRB) reviewed all the evidence and factors of the applicant's discharge and changed the narrative reason for his separation to misconduct (minor infractions), his SPD code to JKN, and his RE code to 3 and issued him a new DD Form 214 due to the ADRB's findings that his discharge was inequitable based on the circumstances, in that there was no evidence of illegal drug use, possession, or distribution.

13.  References:

	a.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge 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 absence 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), in effect at the time, established the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 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.  It states, in pertinent part, that the SPD code JKN is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14-12a, by reason of "misconduct."  The SPD/RE code Cross Reference Table, dated 15 June 2006, states an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKN.

   d.  Army Regulation 635-200 further 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:
   
		(1)  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.

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

		(3)  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.

		(4)  RE-4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was separated (as corrected by the ADRB) under the provisions of Army Regulation 635-200, paragraph 14-12a, misconduct (minor infractions), and his DD Form 214 shows he has an under honorable conditions (general) character of service and RE code of 3.  

2.  His record shows that his attorney stated that he accepted an Article 15 under the UCMJ due to wrongful possession and use of Oxycontin and the applicant admits to taking a pill and to having a female in his bed.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  Based on his record of indiscipline, the quality of his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  By regulation the RE code of 3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct (minor infractions).  The RE code 2 is no longer used.  Therefore, he is not entitled to have his RE code upgraded to RE code 2.

6.  The applicant's separation processing, to include the SPD and RE code assignments, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected physical or mental conditions.  

7.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from reenlistment.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to reenlist, the applicant should contact a local recruiter to determine her eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 








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)                                         AR20140003901





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ABCMR Record of Proceedings (cont)                                         AR20140003901



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