IN THE CASE OF:	  

		BOARD DATE: 	        9 July 2009

		DOCKET NUMBER:  AR20090002153 


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 her reentry eligibility (RE) code of 3 be upgraded to an RE code of 1. 

2.  The applicant states, in effect, that the RE code of 3 is a defamation of her character and carries a stigma in civilian and military life.  Her characterization of service was upgraded 2 years ago but the RE code remained the same.  

3.  The applicant provides a copy of the Army Discharge Review Board (ADRB) Proceedings.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel requests that the applicant's case be carefully reviewed as set forth on the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 June 2004, completed training, and was awarded military occupational specialty 92Y (Unit Supply Specialist).

2.  The applicant was advanced to private first class (E-3) on 1 February 2005.


3.  On 6 February 2005, the applicant's husband reported that he had reason to believe his wife was having an extra-marital affair with a staff sergeant.

4.  During the ensuing investigation, both the applicant and her squad leader, a staff sergeant, admitted to having had sexual intercourse on several occasions.

5.  On 9 March 2005, the applicant received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for adultery.  Her punishment was a reduction to private (E-1), a forfeiture of $617.00 pay per month for 2 months, 45 days of extra duty, and 45 days of restriction.

6.  On 9 March 2005, the applicant's first sergeant counseled her about a proposed initiation of separation proceedings under Army Regulation 635-200, Chapter 14 for misconduct. 

7.  The applicant was afforded a mental status evaluation on 28 April 2005.  She was diagnosed as having a personality disorder with borderline and antisocial personality traits and an adjustment disorder with disturbance of emotion and conduct as well as being pregnant.  

8.  A DA Form 4856 (Developmental Counseling Form), dated 31 May 2005, shows the applicant was counseled by her platoon sergeant for willfully disobeying an order from a commissioned officer for insubordinate conduct towards a noncommissioned officer (NCO) (the 1st sergeant), failure to obey a general order or regulation, and for failure to report for work at the proper time.  Her military appearance was described as being "out of regulation" in that she was wearing nose and/or tongue rings while in uniform, a violation of the uniform regulation.  The platoon sergeant advised the applicant that she was being recommended for NJP for her continued misconduct.

9.  A DA Form 4856, dated 6 June 2005, shows the applicant was counseled for failure to obey a direct order from an NCO.

10.  On 12 July 2005, the applicant's unit commander notified her of the proposed separation action for misconduct due to the commission of a serious offense.  After consulting with counsel, the applicant acknowledged her rights and did not submit a statement in her own behalf.  

11.  On 23 September 2005, the 4th Brigade Commander waived further rehabilitative efforts and approved the separation action.  The Brigade Commander directed that the applicant be issued a general discharge, under honorable conditions.
12.  On 3 November 2005, the applicant was discharged accordingly due to commission of a serious offense, in pay grade E-1.  She had completed 1 year, 4 months, and 27 days of creditable active service.  She was assigned a separation program designator (SPD) code of JKQ and an RE code of 3.  

13.  On 11 April 2007 the ADRB upgraded the applicant’s character of service to honorable and changed the narrative reason for separation to Secretarial Authority.  She was assigned an SPD code of JFF. The ADRB cited the reason for the upgrade was that a procedural error occurred in that the officer approving the discharge action was not the General Court-Martial Convening Authority.  The ADRB considered the issue of the RE code but elected not to change it. 

14.  Army Regulation 635-5-1 (Separation Program Designator (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 to be utilized for separations under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority  are JFF for an involuntary discharge.  The SPD/RE Code Cross Reference Table shows the RE code associated with a SPD code of JFF SPD is "TBD" (to be determined).  This table specifies the separation authority will provide the RE code determination when "TBD" is shown.  

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), as then in effect, governed the eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve for enlistment and reenlistment.  In pertinent part, it states that RE codes are contained on military discharge documents and determine whether or not one may reenlist or enlist in a military service at a later time.  In general, those who receive an Army RE Code of "1" may reenlist in the Army or another service with no problem.  Individuals with an RE Code of "3" can normally reenlist in the Army or another Service, but will require a waiver to be processed.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE code of 3 is a defamation of her character and that it carries a stigma is insufficient as a basis for changing the code.  Not only did the applicant commit the offense of adultery, for which she received NJP, she continued to engage in misconduct.  Such behavior is not in keeping with Army standards.  

2.  While the ADRB determined that a technical error occurred in the processing of the applicant's separation action that warranted recharacterization of her service and a change of the narrative reason for separation, there was insufficient evidence to warrant changing her RE code. 

3.  In view of the circumstances in this case, the assigned RE code of 3 was and still is appropriate and no relief is warranted.

4.  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.

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)                                         AR20090002153



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ABCMR Record of Proceedings (cont)                                         AR20090002153



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