BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090013445 


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 his reentry eligibility (RE) code be changed from RE-3 to RE-1 so he may reenter military service.

2.  The applicant states that he was young at the time but has since matured and is ready to serve his country.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 March 2005; five character reference statements; two self-authored statements; and a copy of his college transcripts in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 12 July 1983 and enlisted in the Regular Army at the age of 18 for a period of 4 years on 24 July 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92A (Automated Logistics Specialist).  The highest rank/grade he attained during this period of enlistment private first class/E-3.

2.  The applicant's records also show he served in Kuwait/Iraq from 1 March 2003 to 26 September 2003.  His awards and decorations include the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, and the Parachutist Badge.

3.  On 4 September 2002, the applicant was arrested by military police personnel at Fort Bragg, NC, for assaulting a noncommissioned officer (NCO) and causing him a broken nose.

4.  On 1 October 2002, court-martial charges were preferred against the applicant for one specification of striking a sergeant in the face with a closed fist.

5.  On 20 November 2002, the applicant pled not guilty at a special court-martial to one specification of committing an assault upon a NCO on or about 4 September 2002.  The court found him guilty and sentenced him to confinement for 90 days, a forfeiture of $737.00 pay per month for 7 months, and a reduction to the lowest enlisted grade.  The sentence was adjudged on 20 November 2002 and was approved on 31  January 2003.

6.  On 22 December 2004, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully falsifying a record by falsely signing an individual sick call slip giving himself a profile for 2 days of quarters on or about 8 December 2004, being disrespectful in language toward an NCO on or about 9 December 2004, and failing to go at the time prescribed to his appointed place of duty on or about 9 December 2004.  His punishment consisted of a reduction to private/E-2, a forfeiture of $669.00 per month for 2 months, 45 days of extra duty, and 30 days of restriction.

7.  On 9 February 2005, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 
14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct-commission of a serious offense.  Specifically, the immediate commander cited the applicant's being disrespectful to an NCO, assaulting an NCO, making a false official statement, and failing to go at the time prescribed to his appointed place of duty.  The immediate commander further recommended a general discharge.

8.  On 9 February 2005, 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 to submit a statement on his own behalf.  In his statement, the applicant apologized for his mistakes and asked for a chance to complete his military service.

9.  On 10 February 2005, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant failed to become a productive Soldier and his retention would have had an adverse impact on military discipline, good order, and morale.

10.  On 2 March 2005, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant's service be characterized as under honorable conditions.  On 25 March 2005, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a character of service as under honorable conditions.  This form further confirms that he completed 3 years, 8 months, and 2 days of creditable active military service.  Item 26 (Separation Code) of this form shows the entry "JKQ" and item 27 (Reentry Code) shows the entry "3."

11.  On 6 December 2006, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of the characterization of his service to fully honorable.  However, the ADRB's action did not direct a change to the narrative reason for separation, separation code, or RE code.

12.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) shows the entry "honorable."  Item 28 (Narrative Reason for Separation) remained "misconduct," item 26 remained "JKQ," and item 27 remained "3."

13.  The applicant submitted two self-authored statements, five character reference letters, and a copy of his college transcripts as follows:

	a.  In his self-authored statement, dated 12 May 2009, and titled, "Why I got out of the Army," the applicant acknowledges the mistakes he made at Fort Bragg, NC.  He also states that he made many strides since his court-martial in that he served in Iraq and volunteered for a second tour.  However, he made a second mistake and received NJP for that.  He now believes that he learned from his mistakes.

	b.  In his self-authored statement, dated 12 May 2009 and titled, "What I Have Been Doing Since I Got Out of the Army," the applicant goes over his civilian education and volunteer efforts with teenagers, the church, and his community.

	c.  In an character reference letter, dated 8 May 2009, an associate pastor and retired U.S. Air Force E-9 comments on the applicant's volunteer efforts and describes him as a person who possesses the skills, attitude, and attributes of a superior Soldier.

	d.  In a character reference letter, dated 8 May 2009, the applicant's work supervisor describes the applicant as a person with a high degree of integrity, responsibility, and ambition.  He is a leader with excellent accomplishments who would be an asset to any organization.

	e.  In a character reference letter, dated 8 May 2009, a former NCO and drill sergeant describes the applicant as a dedicated and outstanding young man and that he would be a valuable asset to the Army.

	f.  In a character reference letter, dated 30 June 2009, a college director describes the applicant as a fine young man with admirable character.  He interacts well with students and faculty members and is committed to giving to his community and country.

	f.  A copy of his college transcripts, dated 18 June 2009, shows he is enrolled at the University of Oklahoma and is seeking a college degree.

14.  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 included 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 could direct a general discharge if such was merited by the Soldier's overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  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) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes.  An RE-1 applies to Soldiers completing their terms 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 periods of service with a nonwaivable disqualification.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states 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 "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table, in effect at the time, shows the SPD code of "JKQ" 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 military service.

2.  With respect to the applicant's age, the evidence of record shows that the applicant was 18 years of age when he enlisted, 19 years of age when he was convicted by a special court martial, and over 20 years of age when he received NJP.  However, there is no evidence that the applicant was any less mature than other Soldiers of the same age who honorably completed their terms of service without assaulting and disrespecting other Soldiers, falsifying documents, or making false statements and failing to go to their appointed places of duty.

3.  The evidence of record confirms that the applicant's RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.

4.  The ADRB determined that the applicant's discharge was too harsh and upgraded it to an honorable discharge.  The ADRB also considered the applicant's RE code when it directed its upgrade action and determined that the RE code should not be changed.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The ABCMR 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 enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.

6.  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 did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to relief.

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)                                         AR20090013445



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ABCMR Record of Proceedings (cont)                                         AR20090013445



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