IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100014318 


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 correction of his reentry eligibility (RE) code from RE-3 to RE-1 so he can reenter military service.

2.  The applicant states he was kicked out for a pattern of misconduct.  He failed his Army Physical Fitness Test (APFT) and failed the weight taping once, but he did not fail either again.  He also had financial problems, but he paid all his debts. 
His problems began after he returned from Iraq to Germany and requested a transfer to a specific assignment.  First, he was reassigned to another unit as a driver.  Next, his room in the barracks was broken into.  He was then harassed by his sergeant and encountered what he described as interracial segregation because he married a woman of a different color.  He adds that he even complained to the chaplain and the inspector general.  It ultimately took his unit over a year to process his discharge.  He just wants to reenter military service and appeals to this Board to give him the opportunity to serve the country that he loves.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* self-authored letter
* four letters and/or character reference statements
* Enlisted Record Brief
* two DA Forms 5790-R (Record Firing Scorecard)
* two DA Forms 5500 (Body Fat Content Worksheet)
* Financial Information and Balance Sheet
* a photograph
* various Standard Forms 600 (Chronological Record of Medical Care)
* DD Form 2697 (Report of Medical Assessment)
* various award certificates and orders, including the Purple Heart
* separation orders
* DA Form 1059 (Service School Academic Evaluation Report)

4.  The case analyst of record contacted the applicant on 29 October 2010 to ascertain whether he wanted to pursue an upgrade of his discharge through the Army Discharge Review Board, which would also consider his RE code, prior to submitting his request to the Army Board for Correction of Military Records (ABCMR).  However, his number is no longer in service.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 28 May 2003 and held military occupational specialty 11B (Infantryman).  He also executed two reenlistments and attained the rank/grade of specialist/E-4.  He was assigned to Headquarters and Headquarters Company, U.S. Army Europe and 7th Army.

2.  His records further show he served in Iraq from February 2004 to February 2005.  He was awarded the Army Commendation Medal, Purple Heart, Army Achievement Medal, Joint Meritorious Unit Award, Valorous Unit Award, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Combat Infantryman Badge, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.

3.  On 22 April 2009, his 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 14-12b, for misconduct – a pattern of misconduct.  He cited the specific reasons as the applicant's failure to report to his appointed place of duty, failing an APFT, writing multiple bad checks, and failing to pay his bills.  The immediate commander recommended a general discharge.

4.  On 22 April 2009, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel who advised him of the basis for the contemplated separation for misconduct and its effect, of the rights available to him, 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.  He understood that he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge were issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He further elected an administrative separation board.

5.  Subsequent to his acknowledgement of this notification, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12b, for misconduct.

6.  On 30 July 2009, an administrative separation board convened in Heidelberg, Germany, to determine if he should be separated.  After considering the evidence, the board determined he committed a pattern of misconduct that included multiple instances of writing bad checks with an intent to defraud, failed to maintain his car insurance coverage and registration, failed to be at his appointed place of duty, failed to pay his bills, made false statements, and failed his APFT on multiple occasions.  The board recommended that he be separated for a pattern of misconduct and issued a general discharge.

7.  On 26 August 2009, the convening authority approved the board's findings and recommendation and ordered the applicant to be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct with a general under honorable conditions discharge.  On 17 September 2009, the applicant was accordingly discharged.

8.  His DD Form 214 shows he was discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 6 years, 3 months, and 20 days of creditable active service.  Item 26 (Separation Code) of this form shows the entry "JKA" and item 27 (Reentry Code) shows the entry "3."

9.  He submitted the following documents:

	a.  a statement, dated 2 February 2009, from his former operations sergeant who described a situation during which the applicant helped save another Soldier who encountered medical difficulties;

	b.  an undated statement from a former operations sergeant who describes the applicant as a responsible, mature, and hard working individual;

	c.  an undated statement from a former unit member who chronicles some of the instances when the applicant borrowed money from him;

	d.  a character statement, dated 5 May 2009, wherein a sergeant states that he interacted with the applicant daily and found him to be respectful, courteous, and skillful;

	e.  two Record Firing Scorecards, dated 15 March 2006 and 27 August 2007, that show he fired Expert and/or Marksman with a weapons system;

	f.  two Body Fat Content Worksheets, dated 12 February 2008 and 25 April 2006, that show he was in compliance with Army standards;

	g.  a Financial Information and Balance Sheet with a breakdown of his income and expenses; and

	h.  various Chronological Records of Medical Care related to his injury and other routine illnesses or injuries.

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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  It states 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.

* 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

* 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

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKA" SPD code is the correct code for Soldiers separating under paragraph 14-12b of Army Regulation 635-200 by reason of misconduct – a pattern of misconduct.

13.  The SPD/RE Code Cross Reference Table 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 table in effect at the time of his discharge shows the SPD code of "JKA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code should be changed from an RE-3 to an RE-1 so he can reenter military service.

2.  The evidence of record confirms his RE code was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  Absent the pattern of misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his pattern of misconduct.  The only valid narrative reason for separation permitted under paragraph 14-12b is "misconduct – pattern of misconduct" and the appropriate RE code associated with this discharge is RE-3 which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

3.  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.  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's RE code.

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)                                         AR20100014318



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ABCMR Record of Proceedings (cont)                                         AR20100014318



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