IN THE CASE OF:	

		BOARD DATE:	15 September 2009  

		DOCKET NUMBER:  AR20090007365 


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 to her reentry (RE) from RE-3 to a more favorable code.

2.  The applicant states that she felt she was being harassed and pushed around.  She adds that she knows she was wrong; however, she does not think her actions warranted a discharge.  She was stressed out due to marital problems and the declining health of her father.  She also had breathing problems during training; however, she never skipped out of physical training like other Soldiers did.  She would like a second chance to do what she loves to do, which is serving in the U.S. Army. 

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 3 July 2008; and three statements of support/ character reference letters in support of her request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of
6 years on 20 June 2007.  She completed basic combat and advanced individual training and she was awarded military occupational specialty 15N (Avionic Mechanic).  She was assigned to B Company, 1st Battalion, 22nd Aviation Regiment, Fort Eustis, VA, and she attained the rank/grade of private first class (PFC)/E-3.  


2.  On 22 May 2008, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in deportment toward a commissioned officer (by sighing while moving to the front of the room) on or about 23 April 2008; making a false official statement (that her father was in the hospital near death) on or about 15 April 2008; being derelict in the performance of her duties (failing to stay at the charge of quarters desk) on or about 15 April 2008; failing to go at the time prescribed to her appointed place of duty (accountability formation) on or about 15 April 2008; disobeying a lawful command from her commanding officer (wrongfully having pornographic material on her cellular phone) on or about 16 March 2008; and disobeying a lawful command from her commanding officer (wrongfully having a dating relationship with another Soldier) on or about 5  March 2008.  Her punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $674.00 pay per month for 2 months, and 45 days of extra duty and restriction. 

3.  The applicant’s records contain several counseling statements from several members of her chain of command for various infractions, to include disrespecting a commissioned officer, lying to a noncommissioned officer, fraternization, missing accountability formation, leaving her appointed place of duty without authority, and violating cell phone policy.

4.  On 17 June 2008, the applicant’s immediate commander notified the applicant of her (the immediate commander’s) intent to initiate separation action against her (the applicant) in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) for misconduct, citing her pattern of misconduct.

5.  On 17 June 2008, the applicant acknowledged receipt of the separation memorandum, she consulted with legal counsel, and she 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 further elected not to submit a statement on her own behalf.

6.  On 17 June 2008, the applicant’s immediate commander initiated separation action against her in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that she (the immediate commander) did not consider it feasible or appropriate to accomplish any other than separation disposition because the applicant had demonstrated through repeated conduct that other disposition would be inappropriate.  

7.  On 20 June 2008, the applicant’s intermediate commander recommended approval of the applicant’s discharge with the issuance of an under honorable conditions character of service.

8.  On 27 June 2008, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with a characterization of service as under honorable conditions.  On 3 July 2008, the applicant was accordingly discharged.  The DD Form 214 she was issued confirms she was discharged with a general, under honorable conditions discharge.  This form further confirms that she completed 1 year and 14 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry "JKA" and item 27 (Reentry Code) shows the entry "3."

9.  The applicant submitted three character reference letters and/or statement of support from military/civilian friends.  The authors essentially describe the applicant as a reliable, dependable, and trustworthy person.  She is also described as a good and a loyal friend who possesses a strong sense of selfless service, but who may have made some mistakes that did not warrant a discharge for misconduct.  The authors agree that she should be given a second chance in the military. 

10.  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 was 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.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  It 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.  Table 3-1 included a list of the Regular Army 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.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the 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 the Department of Defense 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(c) of Army Regulation 635-200 by reason of misconduct.

13.  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 code and a corresponding RE code.  The SPD code of "JKA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her RE-3 code should be upgraded to a more favorable code.  

2.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that she was discharged 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 her discharge was her misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate RE code associated with this discharge an
RE-3.  Therefore, there is no basis for granting the applicant's requested relief.

3.  Furthermore, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if she desires to reenter military service, she should contact a local recruiter who can best advise her on her 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)                                         AR20090007365



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ABCMR Record of Proceedings (cont)                                         AR20090007365



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