IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003595 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he received a reentry (RE) code of "1." 

2.  The applicant states he was mistakenly marked absent without leave (AWOL) and his room cleared without notice.  Further, at the time of his discharge he was only 17 and had poor judgment about how and when to approach his chain of command.  He believes he can be a great asset to the U.S. military.

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 enlisted in the Regular Army on 25 August 2009 at the age of 17.  The highest rank/grade he attained during his enlistment was private/pay grade E-2.  

3.  The commander's report contained in his separation packet shows a disciplinary history that includes numerous adverse counseling sessions for committing the following offenses:

* failure to report to Physical Training formation
* failure to report to extra duty
* accountability formation
* disobeying a lawful order
* disobeying a direct order of an acting Noncommissioned Officer
* disobeying a Commissioned Officer
* wrongful wear of improper insignia on uniform
* Separation from service 

4.  His disciplinary history also includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for:

* wrongfully and willfully impersonating a noncommissioned officer and wearing unauthorized insignia on his uniform 
* failing to go at the time prescribed to his appointed place of duty on 
21 June 2010 and 9 July 2010

5.  He was reported AWOL from 26 June to 28 June 2010.

6.  On an unknown date, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  He stated the applicant impersonated a noncommissioned officer of the U.S. Army by wearing the rank insignia of a sergeant and a combat insignia of the 1st Cavalry Division; failed to report to appointed place on two occasions, and was AWOL for 3 days.

7.  He was advised of his rights and the impact of the discharge.  He accepted his right to consult with legal counsel and submitted a statement in his own behalf, but waived consideration of his case by or personal appearance before an administrative separation board.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  The applicant waived submitting statements or evidence in his own defense.

8.  On an unknown date, the unit commander recommended that he be separated from the service and that further rehabilitative efforts be waived.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

9.  The separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, and that he be furnished a general under honorable conditions characterization of service.

10.  On 13 August 2010, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with an SPD code of JKA and an RE code of 3
* his narrative reason for separation was "pattern of misconduct"

11.  Army Regulation 635-200 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-6 includes 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 the time of separation, but the disqualification is waiverable.  They are ineligible unless a waiver is granted. 

12.  The Separation Program Designator (SPD) Code/RE Code Cross-Reference Table, dated October 2000, shows an RE code of "3" is the appropriate code to assign for the SPD code of "JKA."

DISCUSSION AND CONCLUSIONS:
1.  The applicant request his RE code be changed to RE-1.

2.  The applicant contends he was mistakenly reported AWOL; however, there is no evidence in the record to support his contention.  Further, he contends he was young and immature at the time he committed the offenses and did not know how to approach his chain of command.  His record shows he was 17 years of age at the time of enlistment and 18 years of age at the time of his discharge.  The fact that he was young is not in question; however, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The evidence of record shows he was separated under the provisions of Army Regulation 635-200 due to misconduct.  An RE code of 3 is the appropriate code to assign individuals who are assigned an SPD code of "JKA" due to misconduct.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

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)                                         AR20110003595





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ABCMR Record of Proceedings (cont)                                         AR20110003595



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