IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090014434 


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, upgrade of his reentry eligibility (RE) code from an RE-3 to and RE-1 so he can reenter active duty in the U.S. Army.

2.  The applicant states, in effect, that he made a mistake when he went absent without leave (AWOL) to tend to a personal matter.  He regrets his decision and he has matured and married since his initial enlistment.  He further states he has learned from his mistake and he has a lot more responsibilities now that he is married.  He asks for the chance to make things right.

3.  The applicant does not provide any supporting documentation with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 17 January 2007.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  After completing his training he was assigned to 2nd Battalion, 506th Infantry, Fort Campbell, KY.

2.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 July 2007 for being AWOL from 3 July 2007 to 11 July 2007.

3.  The applicant was counseled upon his return to military control after a documented absence in excess of 30 days of AWOL on 19 September 2009 that shows he could be involuntarily separated from the RA.  Further, he was counseled on the type of discharge he could expect to receive based on his history of misconduct.

4.  On 13 December 2007, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct, commission of a serious offense, based on two periods of AWOL with one period exceeding 30 days.

5.  On 13 December 2007, the applicant acknowledged receipt of the separation memorandum.

6.  After a command directed psychological evaluation on 17 December 2007, the applicant was found to be mentally responsible for his behavior, that he could distinguish right from wrong and adhere to the right, and that he possessed sufficient mental capacity to understand and participate in the separation proceedings.  There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition though medical channels.  His mood was noted as depressed and he was medically cleared for any administrative action or training as deemed appropriate by his chain of command.

7.  After consulting with defense counsel on 7 January 2008, the applicant waived his right to an administrative separation board.  He 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 under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He elected not to submit statements in his own behalf.  In addition, he acknowledged that he understood he would not be eligible for enlistment in the U.S. Army for a period of two years after his discharge.  He also indicated that he retained a copy of the defense counsel's memorandum.

8.  Subsequently, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph
14-12c for misconduct, commission of a serious offense.

9.  The applicant's intermediate commander recommended that he be discharged and issued a general, under honorable conditions characterization of service.

10.  On 29 January 2008, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14 because of misconduct, commission of a serious offense, and directed the applicant be furnished a general, under honorable conditions discharge.  The requirement for a rehabilitative transfer was also waived.

11.  Accordingly, the applicant was discharged on 19 March 2008.  The DD Form 214 he was issued confirms he was discharged with a general, under honorable conditions discharge.  This form further confirms that he had completed a total of 11 months and 3 days of active duty service, that item 26 (Separation Code) shows the entry "JKQ," and that item 27 (Reentry Code) shows the entry "3."

12.  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 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 the regulation.

13.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  The primary purpose of the SPD code is to provide a statistical accounting of reasons for separation intended exclusively for the internal use of the Department of Defense.  It states, in pertinent part, that the SPD code "JKQ" is the appropriate code to assign to RA Soldiers who have been involuntarily discharged for misconduct (serious offense) under the provisions of Army Regulation 635-200, paragraph 14-12c.

14.  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 (RA and 
Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 includes a list of the RA 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 the disqualification is waiverable.  They are ineligible to reenlist unless a waiver is granted.

15.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated 15 June 2006, shows that the appropriate RE code for the SPD code of "JKQ" is RE-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded so he can reenter the U.S. Army.

2.  The evidence of record shows that the applicant’s RE code was assigned because he was separated under the provisions of Army Regulation 635-200, chapter 14 due to misconduct, commission of a serious offense.  The only valid SPD permitted for paragraph 14-12c is "JKQ" and the appropriate RE code associated with this type of SPD at the time of his discharge was 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 (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 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 are responsible for processing RE code waivers.


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)                                         AR20090014434



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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