MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 MARCH 2002
	DOCKET NUMBER:   AR2001064019

	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. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		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:  That his reentry (RE) code of RE-4 be upgraded.  

APPLICANT STATES:  The applicant made reference to an attachment to his application; however, no such document is contained with his request.  He did state that he would defend this country the way he said that he would when he first took the oath of office, something he never forgot.

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

The applicant enlisted in the Army for four years on 13 July 1998, completed training, and in October 1998 was assigned to Fort Bliss, Texas.  

On 25 January 1999 the applicant’s commanding officer was notified that the applicant had been identified as a drug abuser through biochemical testing.  

A 5 February 1999 report of mental status evaluation shows that the applicant was mentally responsible, that he had the mental capacity to understand and participate in proceedings, and that he met the medical standards for retention in the Army.

On 19 February 1999 the applicant received nonjudicial punishment under    Article 15, UCMJ, for wrongful use of marijuana.

On 24 February 1999 the applicant’s commanding officer notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, commission of a serious offense, wrongfully using marijuana.  He stated that he was recommending that the applicant receive an under honorable conditions discharge.  The applicant was advised that his medical examination and mental evaluation was attached with the notification.

The applicant acknowledged receipt of the letter of notification.  He stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He stated that he had been afforded the opportunity to consult with counsel, but declined to do so.  He declined to submit a statement in his own behalf.  He stated that he understood the nature and consequences of the under honorable conditions discharge that he might receive. 

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct and that he receive an under honorable conditions discharge.  The separation authority approved the recommendation.  The applicant was discharged on 1 March 1999.  His             DD Form 214 shows that he was discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c(2).  It shows a separation code of “JKK” and a reentry code of “4.” 

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.   Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct and that drug offenders may be processed for separation.

Army Regulation 635-5-1 prescribes the SPD codes to be used, the authorities, and reasons for their usage and control.  Paragraph 2-3c of that regulation states that the SPD will be entered in block 26 of DD Form 214.  Paragraph 2-3d states the narrative reason for separation will be entered in block 28 of the                   DD Form 214 as listed in either Appendix B or C of that regulation.  No deviation is authorized. 

Table C-3, Appendix C, of that regulation indicates that the regulatory authority for separation for SPD code “JKK” is AR 635-200, para 14-12c(2), and that the narrative reason is “Misconduct.”

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.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  RE-4 applies to a person separated from last period of service with a non-waivable disqualification.  A person with a RE-4 code is ineligible for enlistment.

Chapter 4 of the above mentioned regulation contains waiver and nonwaiver enlistment criteria.  Paragraph 4-9 states in effect that a waiver is required for any applicant who was discharged for misconduct.  However, paragraph 4-24 states in effect that a waiver cannot be granted for persons with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse. 

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 underlying reason for the applicant’s discharge for misconduct was drug abuse, a nonwaiverable disqualification.  Consequently, his reentry code of           RE-4 is correct.  There is no error or injustice.
2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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 that requirement.

4.  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

__INW __  __RJW   _  __GJW__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001064019	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020312	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.	110.00	
3.	4	
4.		
5.		
6.