IN THE CASE OF:	  

		BOARD DATE:	         6 August 2009

		DOCKET NUMBER:   AR20090004274 


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 current reentry code (RE code) 3 be upgraded to an RE code that would allow her to reenter the military.

2.  The applicant states, in effect, that she joined the U.S. Army thinking it would be an honor and a privilege to serve her country.  She states her unit from Fort Stewart, GA deployed to Iraq on 21 January 2003 and then redeployed in August 2003.  She states she was physically ready for the deployment, but not mentally ready and she became stressed for it was hard and more difficult than she had imagined.  She states she made a lot of mistakes for she was rebelling out of fear, fear of the unknown, and not knowing when she would return home.  She admits she didn’t do what she was told to do and that she was given numerous counseling statements.  She felt she was labeled and that everything she did was written up.  Since her separation, she states, in effect, that she has repented and found God.  With her newfound identity, she would like to right the wrong and join the military service. 

3.  The applicant provides a personal statement and a letter from her pastor who is also her employer who states she is an active member of his church and that she is talented, hardworking, trustworthy, loyal and faithful. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows that she enlisted in the Regular Army on 4 April 2002.  She completed basic combat training and advanced individual training.  She was awarded military occupational specialty 92G (Food Service Operator).  The highest rank/grade she attained during her enlistment was private first class/pay grade E-3.

2.  The applicant's service record reveals a disciplinary history of multiple instances of disrespecting and willfully disobeying lawful orders from superior noncommissioned officers, failure to report to appointed place of duty on numerous occasions, and substandard duty performance.  These transgressions were documented on DA Forms 4856 (General Counseling Form) between 
13 January 2005 and 2 February 2006.  The applicant authenticated each DA Form 4856 in her own hand, often rebutting the counselor's factual statements. 

3.  The applicant’s military personnel records show she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions for willfully disobeying an order from a superior noncommissioned officer.  

4.  On 30 January 2006, the applicant received a formal counseling statement that shows her chain of command recommended separating her from the U.S. Army prior to her expiration of her term of service for her repetitive patterns of misconduct.   

5.  On 31 March 2006, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.

6.  On 26 April 2006, the applicant acknowledged receipt of the separation memorandum.  She consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant waived submitting statements or evidence in her own defense.

7.  On 5 July 2006, the separation authority waived further rehabilitative efforts and directed the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of pattern of misconduct, and directed issuance of a general discharge.  

8.  Accordingly, the applicant was discharged on 28 July 2006.  The DD Form 214 she was issued confirms she was discharged with a character of service of under honorable conditions (general discharge).  This form also shows she completed a total of 4 years, 3 months, and 25 days of creditable active military service, that item 26 (Separation Code) shows the entry "JKA," and that item 27 (Reentry Code) shows the entry "3."

9.  The ADRB denied the applicant’s request to upgrade her discharge on 9 June 2008 stating she had been properly and equitably discharged.

10.  Army Regulation 635-200, in effect at the time, set 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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 the regulation.

11.  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 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-6 included a list of the Regular Army RE codes:

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

12.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated October 2000, shows that the appropriate RE code for the SPD code of "JKA" is RE-3.
13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her RE code should be upgraded to a more favorable code so she can enlist. 
   
2.  The evidence of record shows that the applicant’s assigned RE code was based on regulatory guidance because she separated under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  The underlying reason for her discharge was her own patterns of misconduct to include a lack of compliance with established Army standards for behavior, appearance, and timeliness.  The only valid narrative reason for separation permitted under that paragraph is "pattern of 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, she is not entitled to relief.

4.  While the applicant’s desire to enlist is commendable, the Board does not change a properly constituted military record to establish eligibility for a program or benefit.

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)                                         AR20090004274





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ABCMR Record of Proceedings (cont)                                         AR20090004274



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