DOCKET NUMBER: AR20090002326 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 RE (Reentry) Code be changed to permit him to return to military service. 2. The applicant states there was no pattern of drug abuse. Rather, he notes, he made a poor decision upon returning from Iraq. He states he was a model Soldier who scored over 300 on the physical fitness test, qualified as an expert with an Army weapon, and was in the process of going to Sapper school (Sapper Leadership Course trains selected combat engineer unit leaders in leadership skills, combat engineer and infantry battle drills, and the specialized engineer and infantry techniques required to perform as members of a Sapper Battalion) and appearing before a promotion board prior to his separation. 3. In a letter to his congressional representative, included with his application to the Board, the applicant also noted that he has stayed out of trouble for the past 3 years. 4. The applicant provides a copy of his 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his correspondence to his congressional representative in which he sought assistance in changing his RE Code. CONSIDERATION OF EVIDENCE: 1. Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 2 October 2002. He was 27 years old at the time and a high school graduate. His 2002 enlistment contract notes the applicant was charged with possession of a controlled dangerous substance in December 1999. The charges were subsequently dropped and as such, the applicant was permitted to enlist without a waiver. 2. The applicant deployed to Iraq in August 2004 and by October 2004 had been promoted pay grade E-4. In April 2005 he reenlisted for a period of 5 years. He redeployed from Iraq in August 2005. The applicant was awarded a Combat Action Badge for “actively engaging or being engaged by the enemy” during his tour of duty in Iraq. 3. On 17 October 2005 the applicant was administered a urinalysis test which was positive for methamphetamines. As a result of the positive urinalysis, the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) in November 2005. His punishment included reduction to pay grade E-1, forfeiture, extra duty and restriction. 4. In December 2005 the applicant acknowledged receipt of a proposed separation action under the provisions of Chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of his 17 October 2005 positive urinalysis test. His commander informed him that he intended to recommend the applicant receive a general discharge. 5. On 5 December 2005, the appropriate separation authority approved the discharge and directed the applicant be discharged and that he receive a general under honorable conditions discharge. 6. The applicant was discharged on 27 December 2005 under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for misconduct-drug abuse. He had 3 years, 2 months, and 26 days of active Federal service. Item 26 (separation code) on his 2007 DD Form 214 reflects “JKK” and item 27 (reentry code) reflects “4.” Item 28 (Narrative Reason for Separation) of this document has an entry of "Misconduct (Drug Abuse)." 7. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 8. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR). Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes. 9. Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation 601-210 states that a RE-4 applies to persons separated from last period of service with a non-waivable disqualification. Paragraph 4-25 of that regulation states that an individual with prior service last discharged from any component of the Armed Forces for drug or alcohol abuse during their last period of service are disqualified from enlistment and the disqualification is nonwaivable. 10. Army Regulation 635-5-1 (Separation Program Designated Codes), Table 2-3, states that the SPD code of JKK denotes involuntary discharge by reason of misconduct (Drug Abuse). 11. The Army Human Resources Command publishes a cross-reference of SPD and RE codes. This cross-reference shows that an SPD code of JKK is assigned a RE code of RE-4. DISCUSSION AND CONCLUSIONS: 1. The fact that the applicant wishes to again serve in the military has been noted. However, 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. 2. It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c for misconduct by abusing illegal drugs. The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process. 3. While other separations for misconduct may permit an individual to seek enlistment, separation as a result of drug abuse is specifically cited as a nonwaivable disqualification. Hence, his RE code is correctly reflected as RE-4. The fact that he may have received a general discharge does not negate the underlying reason for his administrative separation and may have been an indication that members of his chain of command considered his prior good service in deciding to issue him a general discharge, rather than a discharge under other than honorable condition which is normally issued in such cases. 4. The applicant's RE and SPD codes are based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed. His narrative reason for discharge was based on his discharge for misconduct by abusing illegal drugs, and there is no basis upon which to change this reason. 5. The applicant’s good post service conduct is also not sufficiently mitigating to warrant the relief requested. 6. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20090002326 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090002326 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1