IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100014458 


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 an RE-3 to an RE-1 so he can reenter military service.

2.  The applicant states he was late coming back from his wedding and was confined in the stockade for 3 weeks as a result.

3.  The applicant did not provide any documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 19 October 2006 and held military occupational specialty 11B (Infantryman).  He was assigned to Company D, 2nd Combined Arms Battalion, 5th Brigade Combat Team, Fort Bliss, TX.

2.  On 4 January 2008, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disorderly conduct and being disrespectful to a noncommissioned officer.

3.  On 30 May 2008, he departed his unit in an absent without leave (AWOL) status, but he returned on 9 June 2008.

4.  On 1 July 2008, he was convicted by a summary court-martial of one specification of being AWOL and two specifications of being disrespectful in language and/or deportment toward a superior noncommissioned officer.

5.  On 6 August 2008, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct – commission of a serious offense.  He cited the applicant's AWOL as the specific reason and recommended a general discharge.

6.  On 6 August 2008, 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 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.  He understood 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 further elected not to submit a statement on his own behalf.

7.  Subsequent to the applicant's acknowledgement of this notification, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct.

8.  On 7 August 2008, his intermediate commander recommended approval of the discharge action with the issuance of a general discharge.

9.  On 7 August 2008, the separation authority approved the applicant's discharge ordered the applicant discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with a general under honorable conditions discharge.  On 15 August 2008, the applicant was accordingly discharged.

10.  His records show he was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service as under honorable conditions (general).  This form further shows he completed 8 months and 24 days of creditable active service.  Item 26 (Separation Code) of this form shows the entry "JKD" and 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 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 the regulation.

13.  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 includes 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.

14.  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 "JKD" SPD code is the correct code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 by reason of misconduct for commission of a serious offense.

15.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  This cross reference table shows the SPD code and its corresponding RE code.  The table in effect at the time of his discharge shows the SPD code of "JKD" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE code be changed from RE-3 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 his commission of a serious offense (AWOL).  Absent the commission of this offense, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his commission of a serious offense and the only valid narrative reason for separation permitted under that provision is "misconduct - commission of a serious offense."  The appropriate RE code associated with this discharge is an RE-3 which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

3.  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 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)                                         AR20100014458



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ABCMR Record of Proceedings (cont)                                         AR20100014458



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