RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 19, 2004                  
	DOCKET NUMBER:   AR2003091476

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Robert Duecaster		Member	
	Mr. Melvin H. Meyer		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his reenlistment eligibility code (RE Code) be changed to a code that will allow him to reenlist in another U.S. Armed Service (the Coast Guard).

2.  The applicant states, in effect, that his discharge status is honorable and he would like to reenlist in the U.S. Armed Forces to again serve his country.

3.  The applicant provided a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, with an upgraded characterization of service by the Army Discharge Review Board (ADRB), in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the US Army Reserve (USAR) for 8 years on 25 May 1994.  He enlisted in the Regular Army for 4 years on 11 August 1994.  He completed his basic combat training at Fort Knox, Kentucky, and his advanced individual training at Fort Benjamin Harrison, Indiana.  On completion of his training, he was awarded the military occupational specialty (MOS) 73C, Finance Specialist.

2.  On 5 November 1996, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana, a controlled substance, on about 20 September 1996.  The punishment imposed was reduction to Private, E-2, forfeiture of $300.00 per month for 2 months, and 45 days extra duty.  The applicant did not appeal the punishment.

3.  On 16 January 1998, the applicant underwent a separation physical examination and was found qualified for separation from the Army.

4.  On 29 January 1998, the applicant was notified that his commander was initiating action to separate him from the Army under the provisions of Army Regulation (AR) 635-200, chapter 14, section III, paragraph 14-12c(2), for misconduct – abuse of illegal drugs (marijuana).

5.  A mental status evaluation was conducted on 11 February 1998.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was flat, his thinking process was clear, and his thought content was normal.  The evaluating psychiatrist, a Navy Medical Corps officer, found him to be mentally responsible, considered to have the mental capacity to understand and participate in separation proceedings, and to meet 

the retention standards of AR 40-501, chapter 3.  The applicant was cleared for any administrative action(s) as deemed appropriate by the unit commander.

6.  On 12 February 1998, counsel advised the applicant of the basis for the contemplated action.  The applicant waived consideration of his case by an administrative separation board.  He waived a personal appearance before an administrative separation board and elected not to submit a statement in his own behalf.  He annotated the form, "I am not entitled to a board" in his own hand.  He followed this annotation with his initials.  Additionally, the applicant acknowledged that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

7.  On 17 February 1998, the applicant's unit commander recommended the applicant's separation from the Army.  He recommended that the applicant receive a general discharge (under honorable conditions).

8.  The applicant's intermediate commander recommended approval of the separation action on 25 February 1998, and also recommended that he [the applicant] be issued a general discharge (under honorable conditions).

9.  The approval authority, a colonel, approved that applicant's separation from the Army under the provisions of AR 635-200, chapter 14, and directed that he be issued a general discharge (under honorable conditions).  He further recommended that the applicant not be transferred to the Individual Ready Reserve.

10.  The applicant was discharged on 9 April 1998, in the rank and pay grade, Private, E-2, under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct, with a general discharge under honorable conditions.  He was credited with 3 years, 7 months, and 29 days active military service.  While in service, the applicant received the Army Achievement Medal, the National Defense Service Medal, and the Army Service Ribbon.

11.  The applicant applied to the ADRB for an upgrade of his discharge.  On 26 July 2002, the ADRB reviewed the applicant's discharge and by unanimous decision voted to grant relief and upgrade the discharge to honorable.  The majority of the board members voted not to change the reason for the discharge.  On 26 July 2002, the ADRB notified the applicant of the findings and the decision of that board.

12.  The applicant’s DD Form 214 shows that he was assigned the separation code, "JKK."  This separation code is the correct code for individuals separated 

from the Army for misconduct.  The DD Form 214 also shows he was assigned a RE Code-4.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD Code to be entered on the DD Form 214.

14.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes the proper reentry codes to assign to soldiers separating from the Army.  Table 2-3 indicates that the correct RE code for SPD "JKK" – "Misconduct," is RE Code 4.  Pertinent Army regulations provide 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 (emphasis added).

15.  AR 601-210 eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  Chapter 3 prescribes basic eligibility for prior service applicants for enlistment.  The chapter includes a list of armed forces RE Codes, including RA RE Codes.  

16.  RE Code 1 applies to persons who are completing their period of active service and who are eligible for immediate reenlistment so long as all other qualifications are met.

17.  RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of their separation, but disqualification is waivable. 

18.  RE Code 4 applies to persons separated from their last period of service with a non-waivable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or persons who were separated for any reason (except length of service retirement) with 18 or more years of service.

19.  AR 635-200 sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons.  Readiness is promoted by maintaining high standards of conduct and performance.

20.  AR 635-200, chapter 14, establishes policy and prescribes procedures for separating personnel for misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Section III, paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct and that separation normally will be based upon commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was awarded Separation Code JKK.  The RE-4 Code that was entered on his DD Form 214 is correct.  There is no error in his RE Code.  The applicant is disqualified from reenlistment.

2.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the 
record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

rjw__  ___  mm ____  ryd_____  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.

		___Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091476	
SUFFIX		
RECON		
DATE BOARDED	20040219	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.  191	110.0200	
3.		
4.		
5.		
6.