IN THE CASE OF:	  

		BOARD DATE:	        2 June 2009

		DOCKET NUMBER:  AR20090003730 


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, his reentry eligibility (RE) code be upgraded from "RE-3" to a more favorable code so he may enlist in the Army.

2.  The applicant states that he is requesting the change in his RE code because he has waited over a year to be allowed back into the Army and that the wait time is set at two years.  However, since his discharge, he has matured into an American citizen, father, and husband.  He has had difficult times seeking jobs in the civilian life and appeals to this Board to upgrade his RE code so he may reenter the Army.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 March 2001. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) for a period of 4 years and 18 weeks on 24 February 2006.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

2.  The applicant’s records also show he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  His records do not reveal any commendations, achievements, or acts that warranted special recognition.
3.  On 25 June 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on four separate occasions on or about 31 May 2007, on or about 4 June 2007, on or about 6 June 2007, and on or about 7 June 2007; and for being derelict in the performance of his duties on or about 6 June 2007.  His punishment consisted of reduction or private (PV2)/E-2, a forfeiture of $340.00 pay per month for one month, 14 days of restriction, and 14 days of extra duty.

4.  On 6 August 2007, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on three separate occasions on or about 21 June 2007, on or about 22 June 2007, and on or about 2 July 2007; and for being disrespectful in language toward a superior noncommissioned officer (NCO) on or about 6 July 2007.  His punishment consisted of reduction or private (PV1)/E-1, a forfeiture of $600.00 pay per month for 2 months, and 45 days of extra duty.

5.  On 26 September 2007, the applicant pled guilty at a Summary Court-Martial to 15 specifications of failing to go at the time prescribed to his appointed place of duty on various dates in August 2007; one specification of being disrespectful in language toward a superior NCO on or about 21 August 2007; and one specification of violating a lawful general regulation by wrongfully consuming alcohol while under the age of 21 on or about 29 August 2007.  The Court sentenced the applicant to 30 days confinement.  The sentence was adjudged on 26 September 2007 and approved on 31 October 2007.  

6.  On 16 November 2007, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), for a pattern of misconduct, for failure to go to his appointed place of duty, disrespect towards an NCO, and dereliction of duty.

7.  On 8 November 2007, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to 
him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State 
laws.  The applicant further elected not to submit a statement in his own behalf.
8.  On 8 November 2007, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.  The immediate commander further remarked that he did not consider it feasible to accomplish other disposition and believed that the applicant was unlikely to overcome his deficiencies and become a viable member of the unit.  His continued presence would have reduced morale, readiness, and unit effectiveness.  He recommended an under honorable conditions (general) character of service.

9.  On 14 November 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 632-200, with a general, under honorable conditions discharge. 

10.  On an unknown date in November 2007, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed the applicant be furnished a general discharge.  Accordingly, the applicant was discharged on 30 November 2007.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 1 year, 8 months, and 7 days of creditable active military service and he had 30 days of lost time.  Item 26 (Separation Code) of this DD Form 214 shows the entry "JKA" and item 27 (Reentry Code) shows the entry "3."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active 
and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE Codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JKA" SPD code is the correct code for Soldiers separating under chapter 14-12(b) of Army Regulation 635-200 by reason of misconduct.  

14.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD/RE code of "JKA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-3 code should be upgraded to a favorable code that would allow him to reenter the Army.

2.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  Absent the 
misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct” and the appropriate RE code associated with this discharge is
RE-3.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.
4.  The Army Board for Correction of Military Records does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant.

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)                                         AR20090003730



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003730



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1