IN THE CASE OF:
BOARD DATE: 15 October 2008
DOCKET NUMBER: AR20080009807
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 3 be changed so that he may reenlist in the Army.
2. The applicant states, in effect, that when he enlisted he was full of idealism and wanted to be a part of a great organization and to serve his country. He served honorably, including a tour of duty in Iraq. When he returned to the United States he was assigned to Fort Knox, Kentucky. He ran into some serious personal problems involving his German born wifes immigration visa and resettlement of her in the United States. The stress of this problem led to an unfortunate incident with his baby daughter that resulted in his being convicted by a general court-martial. When it came time for his discharge, he thought that he had lost his idealistic thoughts and wanted to get out of the Army. He now regrets that decision and desires to reenlist. However, his RE Code of 3 is preventing his reentry for a period of 2 years. He asks that his RE Code of 3 be changed to something more favorable so that he may reenlist.
3. The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214) and his discharge orders.
CONSIDERATION OF EVIDENCE:
1. On 22 September 2003, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 19K (Armor Crewman).
2. On 29 December 2006, the applicant was convicted by general court-martial of violation of Article 128, for assault upon a child under the age of 16 years (three specifications). His sentence consisted of confinement for 9 months. The automatic forfeiture of all pay and allowances was deferred with the direction that those monies be paid to the applicants wife and child.
3. On 5 September 2007, the appropriate authority approved a recommendation that the applicant be separated from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.
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. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
5. Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.
6. Under the UCMJ, the maximum punishment allowed for violation of Article 128 for assault on a child under the age of 16 years is a punitive discharge and confinement for 2 years.
7. On 14 September 2007, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense. Accordingly, he was given a Separation Program Designator (SPD) Code of JKQ and an RE Code of 3. His character of service was under honorable conditions.
8. Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE 3 applies to persons separated from their last period of service with a waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
9. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKQ was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 14-12c for commission of a serious offense. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes a RE Code of 3 as the proper RE code to assign to Soldiers for this reason.
DISCUSSION AND CONCLUSIONS:
1. The RE Code of 3, establishing the applicants ineligibility for enlistment/reenlistment without waiver, was correctly entered on his separation document in accordance with governing regulations. There is no evidence of error or injustice. Both the applicants RE Code and his SPD code were correct at the time they were assigned and they are still appropriate.
2. There is no apparent basis for removal or waiver of the applicants disqualification that established the basis for the RE Code of 3. While the applicants desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.
3. 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) AR20070016793
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080009807
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