BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018603 


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 eligibility (RE) code be changed from an RE code of 3 to 1.

2.  He states he was a very respectable Soldier and he was made a scapegoat for other sergeants to make fun of and mistreat.  He would like to reenlist in the Army.

3.  He provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.


2.  The applicant's military records show he enlisted in the Regular Army (RA) in pay grade E-1 on 30 June 1998, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 92G (Cook).  He was honorably released from active duty in pay grade E-4 on 29 June 2001 for completion of required active service.

3.  On 24 May 2005, he again enlisted in the RA in pay grade E-4 for 3 years and in MOS 92G.  

4.  On 24 February 2006, he accepted punished under Article 15, Uniform Code of Military Justice (UCMJ), for making a false statement with the intent to deceive on 5 January 2006.  His punishment consisted of a reduction to pay grade E-3 (suspended to be automatically remitted if not vacated by 23 August 2006) and 14 days of extra duty and restriction.  

5.  On 25 July 2006, he was counseled for failing to be at his appointed place of duty on 24 July 2006.  On 22 August 2006, the above punishment was vacated for this offense.

6.  He was counseled on 16 December 2006 and 3, 11, and 12 February 2007, for being disrespectful towards a noncommissioned officer (NCO), disobeying a direct order, being disrespectful towards a superior commissioned officer, insubordination, failing to obey an order or regulation, and for disobeying a lawful order.  

7.  On 10 February 2007, he accepted punishment under Article 15, UCMJ, for willfully disobeying a lawful order on 10 January 2007.  He was reduced to pay grade E-2 on 10 February 2007.

8.  On 14 February 2007, the applicant underwent a mental health evaluation.  He was found to be fully alert and fully oriented, his mood or affect was normal, his thinking process was clear, his thought content was normal and his memory was good.  The evaluating psychologist, an Army Medical Service Corps officer, found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  The evaluating psychologist found him unsuitable for continued military service based on a diagnosis of an antisocial personality disorder.  The evaluating psychologist stated the applicant did not have a severe mental disorder; however, he manifested a long-standing disorder of character, behavior, and adaptability that was of such severity so as to preclude adequate military service.


9.  On 21 March 2007, the applicant’s company commander advised him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct - pattern of misconduct, with a general discharge.  

10.  On 27 March 2007, the applicant’s battalion commander recommended approval of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct.

11.  On 29 March 2007, after consulting with counsel, he acknowledged receipt of the company commander's notification.  He acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also elected not to submit a statement in his own behalf.

12.  On 29 March 2007, the separation authority approved the recommendation for the applicant's discharge and directed the issuance of a General Discharge Certificate.

13.  On 4 May 2007, he was discharged in pay grade E-2 under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-pattern of misconduct with a general discharge.  He was credited with completing 1 year, 10 months, and 26 days of net active service.  He also had time lost from 20 April to 4 May 2007.

14.  Item 26 (Separation Code) of his DD Form 214 shows "JKA” and Item 27 shows a RE code of "3." 

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), 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.  Chapter 3 of the regulation includes a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification was waivable.  RE-1 applies to persons qualified for enlistment if all other criteria are met.  

16.  Army Regulation 635-5-1 (Separation Program Designator Codes), shows the SPD code of "JKA" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "pattern of misconduct" and the authority for discharge was Army Regulation 635-200, paragraph 14-12b.


17.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  It also showed SPD codes with their corresponding RE code.  The SPD code of “JKA” had a corresponding RE code of “3.”

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged on 16 September 2004, under the provisions of Army Regulation 635-200, paragraph 14-12b, due to a pattern of misconduct.  He was assigned an SPD code of "JKA” which had a corresponding RE code of "3."  The RE code that is shown on his DD Form 214 is commensurate with and corresponds with his narrative reason for his separation.

2.  The evidence does not show and he has provided no evidence to show his separation which resulted in him receiving an RE code of "3" was unjust.   Therefore, he has established no basis for changing his existing 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)                                         AR20100018603



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018603



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1