IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080004923 


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, in effect, that his reentry (RE) Code be changed from "RE 4" to "RE 3."

2.  The applicant states, in effect, that the RE Code of "4" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) did not meet the requirements stated in Army Regulation 635-5 and Army Regulation 601-210 
and was a typing error according to his appointed JAG (Judge Advocate General) Attorney from Fort Drum, New York.

3.  In an additional statement, he states that he was discharged on 25 September 2007 and given a RE Code of "4."  Prior to 25 September 2007, he was under the impression that he would be receiving a RE Code of "3" due to the fact that the charges against him did not justify a RE Code of "4."  He states that when he was discharged with the RE Code of "4," he began searching for ways to appeal and have the RE Code lowered to a RE Code of "4."  Finally, in January 2008, he contacted the JAG lawyer from Fort Drum, New York, who represented him during his separation.  He informed the applicant that the RE Code "4" must have been a typing error and provided him with the Army Regulations to support this conclusion.  He elaborated on the regulations and requested that the RE Code be corrected and changed to RE "3" in accordance with regulation.  




4.  In support of his request, the applicant provides a copy of his DD Form 214, copies of extracts from Army Regulation 635-5 and Army Regulation 601-210, contact information for the JAG attorney, at the time of his discharge, and a copy of the charges preferred against him.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 8 August 2006, for 4 years and 18 weeks, with an established expiration term of service  (ETS) of 11 December 2010.  He was trained in military occupational specialty (MOS), 88M, Motor Transport Operator.  He was promoted to pay grade E-2 effective 1 June 2007.

2.  On 27 June 2007, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty, for wrongfully consuming alcohol while under the age of 21, for driving a passenger car while drunk, and for assaulting another Soldier.  His punishment consisted of a reduction to pay grade E-1 and 45 days extra duty.

3.  On 28 June 2007, the applicant underwent a mental status evaluation which revealed a fully oriented alert individual whose behavior was normal.  His mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicates that he had the mental capacity to understand and participate in the proceedings and was mental responsible.  He met the retention requirements of Army Regulation 40-501, chapter 3.  The remarks section of the evaluation form indicates that he was psychiatrically cleared for administrative action deemed appropriate by command.

4.  On 13 July 2007, the applicant was punished under Article 15, UCMJ, for absenting himself from his unit on 6 July 2007 and remaining so absent until 10 July 2007.  His punishment consisted of a forfeiture of $640.00 pay per month for two months (suspended) and 45 days extra duty.

5.  On 30 July 2007, the applicant was convicted by a summary court-martial of 
being absent without leave (AWOL) from 14 June 2007 to 19 June 2007 and from 8 August 2007 to 22 August 2007; of failing to go to his appointed place of duty on four occasions; of being disrespectful toward his superior commissioned officer; of disobeying a lawful order from a senior noncommissioned officer; of being disrespectful in language toward a senior noncommissioned officer; and violating a lawful general regulation, by wrongfully possessing alcohol under the legal drinking age.  His sentence consisted of a forfeiture of pay of $867.00 per month for one month and confinement for 30 days.  
6.  On 30 August 2007, the applicant's commander advised the applicant he was taking action to separate him from the service prior to his ETS under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a serious offense.  He based his recommendation on his record of disciplinary actions under UCMJ and conviction by summary court-martial.  

7.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 30 August 2007, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, misconduct-commission of a serious offense.  

9.  The separation authority approved the recommendation for the applicant's discharge on 19 September 2007 and directed that he be issued an under other than honorable conditions discharge.  

10.  The applicant was discharged on 25 September 2007, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2), for misconduct-serious offense.   He had completed 1 year and 15 days of creditable service.

11.  Item 27 (Reenlistment Code), of the applicant’s DD Form 214, shows the entry "4," item 26 (Separation Code) shows the entry, "JKQ," and the narrative reason for separation entered on his discharge certificate was misconduct, serious offense.

12.  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.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 appropriate for a soldier discharged under this chapter.

13.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.
14.  RE-4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualification such as misconduct.

15.  RE 3 applies to persons not fully qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

16.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator (SPD) "JKQ", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is "misconduct, commission of a serious offense" and the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14, paragraph 14-12c."  

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKQ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct-serious offense, and was issued an under other than honorable discharge.  He was issued a Separation Code of "JKQ" that has a corresponding RE Code of "3."  However, his DD Form 214 shows a RE Code of "4."

2.  The applicant's RE Code of "4" is not consistent with the Separation Code and with the basis for his separation.  Therefore, the Board recommends that the applicant's records be corrected to show a RE Code of "3" which is consistent with the basis for his separation.  







BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing a Reentry Code of "3" in item 27 (Reentry Code), of his DD Form 214, dated 25 September 2007.




       _   ___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)                                         AR20080004923



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ABCMR Record of Proceedings (cont)                                         AR20080004923



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