IN THE CASE OF:	    

		BOARD DATE:	        16 September 2008

		DOCKET NUMBER:  AR20080008524 


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, a change in his reentry (RE) code so he will be eligible to reenter the Army.

2.  The applicant states, in effect, that he realizes he made a lot of poor decisions and he has learned from his mistakes.  He attributes his lapses in judgment to the fact that he was suffering from depression and insomnia due to the death of his grandmother.  The applicant further states that his family has a tradition of service in the military and he desires to continue that tradition so he can fulfill a promise that he made to his grandfather and prove his worth.

3.  The applicant provides a self-authored statement and a Certificate of Death as additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Army's Delayed Entry Program on 13 April 2006 and entered active duty on 21 June 2006 at the age of 19.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 11B (Infantryman).  The highest rank the applicant attained while serving on active duty was private (PV2)/pay grade E-2.  However, he held the rank of private (PVT)/pay grade E-1 when he was discharged on 17 July 2007.  The applicant served on active duty for a period of 1 year and 27 days.  He did not complete his first full term of service.

2.  The applicant's record shows that during his active duty tenure, he earned the National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon.  His record documents no acts of valor, significant achievement or service warranting special recognition.

3.  The applicant provides a State of Michigan Department of Community Health Certificate of Death, dated 19 January 2007.  This document certifies that an 83 year old woman was pronounced dead at the Memorial Medical Center located in Ludington, Michigan on 6 January 2007. 

4.  DD Form 458 (Charge Sheet), dated 23 March 2007, shows the applicant was charged with violation of 4 Articles of the Uniform Code of Military Justice (UCMJ):

	a.	Article 86 (Absence Without Leave (AWOL)) on 4 occasions;

	b.	Article 90 (Willfully Disobeying a Superior Commissioned Officer);

	c.	Article 92 (Failure to Obey a Lawful General Order); and

	d.	Article 112a (Wrongful Use of Controlled Substances) on 2 occasions.

5.  Pretrial Offer and Agreement, dated 5 April 2007, shows that the applicant examined the charges preferred against him and consulted with legal counsel.  This document also shows that after being fully advised of his legal and moral right to plead not guilty, the applicant elected to plead guilty to all charges and specifications, to be tried by Summary Court-Martial, and waive his right to a hearing before an administrative separation board.  In exchange for the applicant's actions, the Convening Authority agreed to refer the case to a Summary Court-Martial.

6.  DD Form 2329 (Record of Trial By Summary Court-Martial), dated 24 April 2007, shows the applicant appeared before a Summary Court-Martial on 20 April 2007.  This form further shows the applicant both pled and was found guilty of each of the aforementioned charges and specifications.  As a result, he was sentenced to reduction to PVT (pay grade E-1), forfeiture of $867.00 pay per month for 1 month, and confinement for 30 days.

7.  Charlie Company, 3rd Battalion, 21st Infantry Regiment, Fort Wainwright, Alaska Memorandum, dated15 June 2007, shows the applicant waived his right to attend a Trial Defense Services briefing.  He acknowledged that the implications of his decision had been explained to him and that he completely understood.  He authenticated this decision by signing the memorandum.

8.  On 18 June 2007, the applicant's unit commander notified him that he was initiating action to separate him under the provisions of paragraph 14-12c (Commission of a Serious Offense) of Army Regulation 635-200 (Personnel Separations) for his pattern of misconduct and abuse of illegal drugs.  The unit commander cited the applicant's failing to report to his appointed place of duty, AWOL, consumption of alcohol prior to obtaining the age of 21, and disobeying his superior commissioned officer as the basis for taking the action.  The unit commander informed the applicant that he was recommending he receive an other than honorable discharge.  The applicant acknowledged receipt of this notification and the fact that he had been advised of his right to consult with counsel prior to making any election of rights on 18 June 2007.

9.  The applicant's chain of command unanimously recommended approval of the separation action and further recommended that the applicant's service be characterized as other than honorable.

10.  On 27 August 2007, the separation authority approved the unconditional waiver submitted by the applicant to voluntarily waive consideration of his case by an administrative separation board and the applicant's separation in accordance with the provisions of Army Regulation 635-200, paragraph 14-12c due to his pattern of misconduct and directed that his service to be characterized as under other than honorable conditions.  He further directed that the applicant be expeditiously out-processed from the installation and the Army and permanently barred him from reentering all United States Army installations in Alaska, effective the date of his discharge.

11.  Military Personnel Division, Fort Wainwright, Alaska, Orders 193-0205, dated 12 July 2007, reassigned the applicant to the Fort Wainwright transition point for transition processing with a discharge date of 17 July 2007.

12.  Item 25 (Separation Authority) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon separation indicates he was separated under the provisions of paragraph 14-12c (Commission of a serious offense) of chapter 14 (Separation for Misconduct) of Army Regulation 635-200.  It also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JKQ in Item 26 (Separation Code) and an RE code of 4 in Item 27 (Reentry Code).

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c due to a pattern of 

misconduct and commission of a serious offense.  The SPD/RE Code Cross Reference Table indicates that RE code 3 is the proper code to assign members separated with SPD code JKQ.

14.  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.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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 code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his RE code was carefully considered and found to be with merit.

2.  Evidence of record shows the applicant was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his pattern of misconduct and abuse of illegal drugs.  The DD Form 214 issued to the applicant at the time of his discharge shows that he was assigned an erroneous RE code of 4 in Item 27.

3.  Evidence shows that based on the authority and reason for his discharge, he should have been assigned an RE code of 3 at the time of his discharge.

4.  Based on the foregoing, in this case, it would be appropriate to correct the applicant's record by voiding his original DD Form 214 and issuing him a replacement DD Form 214 to show that he was assigned a Reentry (RE) code of 3 at the time of his discharge.

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 to show that he was assigned a Reentry (RE) code of 3 at the time of his discharge.




      _______ _  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)                                         AR20080008524





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ABCMR Record of Proceedings (cont)                                         AR20080008524



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