MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  23 March 2000
	DOCKET NUMBER:   AR1999029422

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

	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his military records by changing his reentry (RE) code from 4 to 3.

APPLICANT STATES:  In his request and detailed personal statement, in effect, that during his military service, he only had two Articles 15; and that he learned the meaning of dignity, respect, and honor however, he lost his focus and commitment to his duties and truly regrets the circumstances that led to his discharge.  He further states that since his discharge, he has matured and is now ready to rebuild his military career by having another opportunity for military service but without a RE code change, it won’t happen.  He also provided a character reference letter from his church elder.

EVIDENCE OF RECORD:  The applicant's available military records show:

He enlisted in the Regular Army (RA) for a period of 3 years and training in military occupational specialty (MOS) 63H, track vehicle repairer.  He successfully completed his basic combat training, advanced individual training and his initial duty assignment to Korea.  On 28 August 1997, he was assigned to MOS 63H duties at Fort Carson, Colorado.  He was advanced to the rank of specialist (SPC E-4) on 1 November 1997.

On 20 January 1998, non-judicial punishment (NJP) by field grade Article 15 was imposed against him for the wrongful use of marijuana.  His punishment included reduction to private (PVT E-2), forfeiture of $519.00 per month for 2 months, and 
45 days of extra duty.  Drug testing documentation in his records indicated that he tested positive for the use of marijuana.

Several formal counseling documents executed in January 1998 indicated that he was counseled about his written acknowledgement of the regulation and his responsibilities concerning personal firearms in December 1997, and his subsequent failure to carry out those responsibilities.  He was also advised to return the firearm to the pawnshop.  Also, he was formally counseled for openly displaying a gang-related tattoo on himself and a flag in his barracks room. 

On 9 March 1998, field grade NJP was imposed against him for disobeying a lawful general regulation by wrongfully transporting a personally owned weapon in his vehicle. His punishment included reduction to PVT E-1, forfeiture of $463.00 per month for 
2 months, 1 month suspended, and 45 days of extra duty and restriction.  Other police documentation contained in his records show that just before he was apprehended and charged with the offense mentioned above, he evaded civilian police and ran two red lights before being stopped, jointly, by civilian and military police after entering a rear gate at Fort Carson.  A full ammunition clip and holster was also found in his vehicle.  Also contained in his records was a copy of a receipt indicating that he purchased a firearm, a .38 caliber semi-automatic pistol, from a local pawnshop.

His unit commander initiated separation proceedings by an undated memorandum under the provisions of Army Regulation (AR) 635-200, Chapter 14, for the commission of a serious offense, his use of marijuana, and also his failure to register a firearm, failure to tell the truth, attempting to evade civilian police, and, as a gang member, attempting to recruit soldiers.  Accompanying documents indicated that he was afforded the opportunity to consult with a military lawyer and that he waived his right to appear before an administrative elimination board.  His report of medical examination and report of mental status evaluation qualified him for separation.

On 22 April 1998, the separation authority, a major general, approved the chain of command’s request for separation and directed the issuance of an Under Other Than Honorable Conditions Discharge certificate.

His DD Form 214, separation document, indicated that he was separated on 29 April 1998, under other than honorable conditions for misconduct in accordance AR 635-200, Chapter 14.  He had completed 2 years, 5 months and 8 days of creditable service with no lost time.  Separation Program Designator (SPD) code JKK and RE code 4 applied.  

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.  It specifically deals with the abuse of illegal drugs, and provides, in effect and in pertinent part, that abuse of illegal drugs is a serious offense and that one drug offense may be combined with one or more minor infractions or incidents of other misconduct and processed for separation. 

Army Regulation 601-210 sets forth the basic authority for the Regular Army and Army Reserve Enlistment Program.  Chapter 3, of that regulation provides, in pertinent part, that RE codes may be changed only if they are determined to be administratively incorrect.  No requirement to change RE code exists to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request correction.  The regulation further states that RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification and includes persons being separated with a Department of the Army Bar to Reenlistment in effect.

Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), pertaining to the reasons for separation of members from active military service and the SPD code to be used for these stated reasons.  SPD code JKK applies to misconduct, drug abuse including use, possession, sale, transfer or introduction on a military installation and not attributed to urinalysis.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s request to change his RE Code is not warranted when the evidence of record is considered.

2.  The Board commends his post-service personal growth, maturity and his apparent new outlook toward his prior military service however, this does not mitigate, in any way, the circumstances that led to his separation.

3.  The Board concludes that by violating the Army’s policy not to use illegal drugs, he compromised the special trust and confidence placed in him at the time.  As a soldier, he had a duty to support and abide by the Army’s drug policy.  By using marijuana, he, knowingly, risked his military career.  His illegal drug use, an act of serious misconduct, and other misconduct cumulatively diminished the quality of his service.  Therefore, military officials administratively discharged him and applied SPD code JKK and the corresponding RE code 4 to his DD Form 214 to permanently prevent his return to military service.  Accordingly, RE code 4 is correct and cannot be changed.

4.  His administrative separation by Chapter 14 was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__SP___  __JA____  __RA____  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029422	
SUFFIX		
RECON		
DATE BOARDED	20000323	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19980429	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100	
2.		
3.		
4.		
5.		
6.