IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100019242 


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 Reentry (RE) Code from an RE-3 or to a more favorable code which will allow him to reenter the Army. 

2.  The applicant states it has been 5 years since he was discharged from the Army with an RE Code of 3 which he was told was waivable; however, recruiters have since told him it is impossible for him to reenter the Army.  He contends he has not broken any laws since he has been separated or killed anyone.  Further, he is mentally and physically able to perform his duties as a U.S. Army Soldier.  He was diagnosed with Post-Traumatic Stress Syndrome (PTSS) and prescribed Trazodone HCL at the Veterans Affairs Medical Center, Salisbury, NC. 

3.  The applicant 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 records show he enlisted in the Regular Army on 13 May 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty 25U (Signal Support System Specialist).

3.  His records show he served in Iraq from 11 May 2003 to 17 July 2004.  

4.  On 22 August 2005, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

* Intent to deceive, sign a false official record, to obtain military housing
* Unlawfully striking a person, not his wife, with his hand
* Wrongfully having sexual intercourse with a woman not his wife
* Wrongfully cohabitating with a woman not his wife

5.  On 30 August 2005, 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 Field Grade Article 15 the applicant received for signing a false official record, assault, adultery, and wrongful cohabitation.  He recommended an under other than honorable conditions discharge.

6.  On 31 August 2005, he acknowledged receipt of the commander's intent to separate him.  He 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 requested consideration of his case by an administrative separation board.  He further elected to waive consideration of his case by an administrative separation board contingent upon the issuance of a general discharge.  Further, he waived his right to submit a statement in his own behalf.

7.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general 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.


8.  On 6 September 2005, 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 that he be issued a general discharge.

9.  On 7 September 2005, his intermediate commander recommended approval of his discharge with the issuance of an under honorable conditions (general) discharge. 

10.  On 6 October 2005, 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 that his service be characterized as general, under honorable conditions.  Accordingly, the applicant was discharged on 4 November 2005.  

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in accordance with paragraph 14-12c of Army Regulation 635-200 with a characterization of service of under honorable conditions (general) by reason of misconduct - commission of a serious offense.  This form further confirms he completed 8 years, 5 months, and 22 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 28 June 2007, the Army Discharge Review Board denied the applicant's request to have the character and/or reason of his discharge changed. 

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 if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Courts-Martial.  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 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 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.

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable.  They are ineligible unless a waiver is granted.

15.  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 SPD Code of "JKQ" 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.

16.  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 applicant requests that his RE Code be upgraded from a 3 to a more favorable code which will allow him reenter the Army.

2.  The evidence of record shows the applicant accepted nonjudicial punishment for signing a false official record, assault, adultery, and wrongful cohabitation.  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.  

3.  The evidence of record confirms his Separation and RE Codes were assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to commission of a serious offense.

4.  The appropriate Separation Code associated with this type of discharge is "JKQ" and the corresponding RE Code associated with this discharge is 3, both of which are correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

5.  In view of the above, his request should be denied.

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)                                         AR20100019242



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ABCMR Record of Proceedings (cont)                                         AR20100019242



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