IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012385 


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 his reentry (RE) code be changed.

2.  The applicant states, in effect, he did not receive any Article 15s or UCMJ (Uniform Code of Military Justice) action while on active duty.  He also states that his discharge is wrong.

3.  The applicant provides two copies of memoranda regarding his administrative discharge in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) on
15 July 2003.  

2.  The applicant's military record contains a DA Form 3975 (Military Police Report) dated 5 May 2007 which shows that the applicant was apprehended for simple assault-consummated by a battery, spouse abuse-civilian female victim, and communicating a threat (other than telephone). 

3. The applicant's military record contains a DA Form 3975 dated 26 August 2007 which shows that the applicant was apprehended for simple assault-consummated by a battery, spouse abuse-civilian female victim. 

4.  The applicant's record also contains seven General Counseling statements, dated between 4 May and 6 September 2007, for various offenses to include adultery/marital problems, debt management, housing/cleanliness, driving with suspended license, domestic violence, violation of no contact orders, insubordination, and failure to follow orders.

5.  On 30 August 2007, a mental status evaluation cleared the applicant for any administrative action deemed appropriate by the command.

6.  On 20 September 2007, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, chapter 14-12b (pattern on misconduct) for numerous traffic citations, driving with a suspended license, being involved in multiple domestic violence altercations with his spouse, and violating no contact orders.  The commander recommended the applicant receive a general, under honorable conditions discharge.

7.  On 26 September 2007, the applicant acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and indicated statements in his own behalf would be submitted.  However, no statements were contained in the available records.

8.  On 2 October 2007 the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14-12b for pattern of misconduct and directed that the applicant receive a General Under Honorable Conditions Discharge Certificate.

9.  On 24 October 2007, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he held the rank of specialist/E-4, and had completed a total 4 years, 3 months, and 10 days of active military service.  The DD Form 214 also shows that his character of service was general, under honorable conditions; the separation authority was Army Regulation     635-200, paragraph 14-12b; his RE code was RE-3; and the narrative reason for his separation was pattern of misconduct.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter 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.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

14.  Army Regulation 635-5-1 (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.  The SPD code of JKA is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 14-12b, by reason of pattern of misconduct.  Additionally, at the time the SPD/RE Code Cross-Reference Table established RE-3 as the proper RE code to assign to Soldiers separated with an SPD code of JKA.

DISCUSSION AND CONCLUSIONS:

By regulation, the RE-3 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, chapter 14-12b for pattern of misconduct.  Contrary to the contention that he had no Article 15s or incurred any UCMJ action, his record shows he received seven counseling statements for offenses that were punishment under the UCMJ and that he compounded his pattern of misconduct by being apprehended twice for spousal abuse and violating no contact orders.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, his character of service, his separation authority, his RE code, and the narrative reason for his separation were and still are appropriate.  

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)                                         AR20090012385



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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