IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100014996 


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 an upgrade of his general discharge under honorable conditions to a fully honorable discharge and an upgrade of his Reentry (RE) Code from an RE-3 to a more favorable code. 

2.  The applicant states he was assaulted by a noncommissioned officer (NCO) for driving too slow during what he considered safe road conditions.  He was kicked out for misconduct for this action.  He believes this is not right.  He would like to renter military service and retire with honors. 

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years and 16 weeks on 10 January 2006.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was assigned to the 2nd Squadron, 11th Armored Cavalry Regiment, Fort Irwin, CA.

2.  The applicant’s records further show he was awarded the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.

3.  His records contain an extensive history of negative counseling by several members of his chain of command for multiple infractions, including disrespect, failure to follow instructions, several instances of communicating a threat toward an NCO, failure to be at his appointed place of duty, failure to repair, insubordination, failure to follow regulations, disobeying orders, being absent without leave (AWOL), dereliction of duty, reckless operation of a military vehicle, and several instances of physically assaulting NCOs. 

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* On 30 March 2007, for being AWOL from 9 January 2007 to 25 January 2007
* On 27 September 2007, for three separate instances of disrespecting an NCO

5.  On 1 February 2008, he was convicted by a summary court-martial of one specification of failure to report, one specification of leaving his appointed place of duty, one specification of using provoking words towards another Soldier, one specification of assaulting another Soldier, and one specification of communicating a threat to a commissioned officer.  The court sentenced him to confinement for 30 days.  His sentence was approved on 1 February 2008.

6.  On 2 May 2008, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of misconduct - commission of a serious offense.  Specifically, he cited the applicant's having twice wrongfully communicated a threat towards an NCO.  He recommended a general, under honorable conditions discharge.

7.  On 2 May 2008, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further elected not to submit a statement in his own behalf.

8.  He further indicated 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 as a result of the issuance of an under other than honorable conditions discharge.

9.  On 2 May 2008, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended a general, under honorable conditions discharge.

10.  On 2 May 2008, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as general, under honorable conditions.  Accordingly, the applicant was discharged on 13 May 2008.  

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct - commission of a serious offense.  This form further confirms he completed 2 years, 4 months, and 4 days of creditable active service.  Additionally, this form shows in:

* Item 26 (Separation Code), the entry "JKQ"
* Item 27 (Reentry Code), the entry "3"

12.  On 5 April 2010, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 

13.  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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

14.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
15.  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.  It 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.  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

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

17.  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 "JKQ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct for various infractions ranging from failure to follow instructions and failing to report to insubordination, disrespect, and going AWOL.  His misconduct culminated in two instances of communicating a threat.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge

3.  The evidence of record confirms his 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 his misconduct.  Absent the misconduct, there was no fundamental reason to process him 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 an RE-3 which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

4.  His desire to join the Army to serve his country is noted.  However, the Army Board for Correction of Military Records 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)                                         AR20100014996



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014996



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1