IN THE CASE OF:	

		BOARD DATE:	    20 July 2010

		DOCKET NUMBER:  AR20100000317 


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 (RE) code be changed to RE-1.  He also requests his general discharge be upgraded to honorable. 

2.  The applicant states:

* He was informed 2 years after his discharge he would be given the opportunity to be eligible to reenter in the military and serve his country
* He is requesting a waiver to change his RE code
* The waiver will give him an opportunity to enlist in the military and serve his country in the United States Army 

3.  The applicant provides:

* Character reference letters
* Letters of recommendation and support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from a Member of Congress
* Certificates of Completion

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 July 2004 for a period of 
4 years.  He trained as a veterinary food inspector and attained the rank of specialist.  

2.  On 8 December 2006, nonjudicial punishment was imposed against the applicant for conspiring with two other Soldiers to assault another individual and using ecstasy.  His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty, and restriction. 

3.  On 14 May 2007, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  The unit commander based his recommendation for separation with an honorable discharge on the following:

* The applicant tested positive for ecstasy
* He conspired to assault another individual by assembling a certain number of individuals to assault him
* Not shaving (two separate incidents)
* Being disrespectful to a noncommissioned officer
* Being late to physical training and work call
* Being late for work call (two separate incidents) 

4.  On 18 May 2007. the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement on his own behalf.  In summary, he stated he hoped his overall record of service would give him another chance to prove himself, he had served on active duty for 2 years, and he was awarded the National Defense Service Medal, Army Service Ribbon, and the Global War on Terrorism Service Medal.  He also stated he accepted full responsibility for his action, he recognized any drug use is serious misconduct, and he requested to be retained on active duty, or, barring that, be granted an honorable discharge.

5.  The intermediate commander recommended approval of the separation action with an honorable discharge.

6.  On 30 May 2007, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

7.  On 26 June 2007, the applicant was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 2 years, 11 months, and 26 days of creditable active service.  

8.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B.  Item 
26 (Separation Code) on his DD Form 214 shows the entry "JKA."  Item 
27 (Reentry Code) on his DD Form 214 shows the entry "3."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "PATTERN OF MISCONDUCT.”

9.  The applicant provided numerous character reference letters and letters of recommendation for his retention, dated 2007, from fellow Soldiers.  He also provided a letter, dated 11 December 2009, from the Disabled American Veterans in Decatur, Georgia; a letter, dated 1 December 2009, from a master sergeant at the Veterinary Command Operations at Fort Sam Houston, Texas; and a letter, dated 30 November 2009, Disabled American Veterans in Marietta, Georgia, recommending his reenlistment in the Army. 

10.  On 15 May 2009, the Army Discharge Review Board denied the applicant's request for an honorable discharge.  

11.  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 (military or civilian 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.  

12.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKA” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

14.  Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

15.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

16.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

17.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 15 June 2006 shows that when the SPD [Separation Program Designator] is "JKA," then an RE code of 3 will be given.  

DISCUSSION AND CONCLUSIONS:

1.  The RE code used in the applicant's case is correct and was applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant's request to change his RE code.

2.  The applicant's current RE code is a waivable code.  Therefore, the applicant may still apply for service in the Armed Forces and request the appropriate waiver.

3.  The character reference letters and letters of recommendation submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant's record of service included one nonjudical punishment for conspiring to commit assault and drug use.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.


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)                                         AR20100000317





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)