IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004199 


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 a change of the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states he was given an honorable discharge.  Everyone in his chain of command at the time of his discharge proceedings believed most if not all allegations [against him] were false.  His experience is still a valuable asset to the U.S. military.

3.  He provides a self-authored statement, seven memoranda of support, his Enlisted Record Brief (ERB), and his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army (RA) from 10 June 1998 to 18 June 2005.  Following a break in service, on 13 November 2008, he again enlisted in the RA.  

2.  His record shows he was counseled on:

* 3 October 2009 for being drunk on duty, disrespecting a senior noncommissioned officer (NCO), and failure to report
* 2 November 2009 for reporting for work smelling like alcohol
* 10 November 2010 for having a blood alcohol content of 0.276 percent (%)
* 16 November 2009 for reporting for work smelling of alcohol, slurring words, and moving slowly
* 21 December 2009 for having a blood alcohol content of 0.280% when he was tested on 16 November 2009

3.  On 2 February 2010, the Chief, Alcohol Treatment Center (ATC), Brian Allgood Army Community Hospital, informed the applicant's commander he was released from the ATC.  His commander was advised his discharge was characterized as successful.  The memorandum shows he had been command referred for treatment following two incidents of being under the influence of alcohol during duty hours.  

4.  Following his discharge from the ATC, he was counseled on:

* 24 February 2010 for being drunk on duty and failing to report to the prescribed place at the prescribed time
* 7 April 2010 for failure to report to the prescribed place at the prescribed time

5.  On 13 May 2010, he was charged with:

* two specifications of failing to go at the time prescribed to his appointed place of duty
* two specifications of being disrespectful toward a superior NCO
* one specification of failure to obey a lawful order
* one specification of making an official statement with intent to deceive
* three specifications of being drunk while on duty

6.  On 24 May 2010, he was counseled regarding his commander's intent to recommend him for separation for alcohol or other drug abuse rehabilitation failure with a general discharge.

7.  On 2 June 2010, a summary court-martial found him guilty of one specification of being found drunk while on duty.  He was found not guilty of eight of the nine specifications with which he had been charged.  

8.  On 21 June 2010, he was counseled for failure to be at his appointed place of duty, and on 19 July 2010, after his commander received blood test results, he was counseled for being drunk on duty on 21 June 2010.

9.  On 11 August 2010, his commander notified him he was initiating action to separate him for a pattern of misconduct under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12b.  He stated the basis for the action was the applicant's conviction for being drunk on duty, his failure to be at his appointed place of duty on 21 June 2010, and his blood alcohol level of 0.160% on 21 June 2010.  On 11 August 2010, he acknowledged receipt of the notice.

10.  On 18 August 2010, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for a pattern of misconduct and its effects, the rights available to him, and the effect of waiving his rights.  He requested consideration of his case by an administrative separation board and personal appearance before such a board.  He indicated he understood if he was discharged pursuant to the proposed separation action he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

11.  On 23 September 2010, the separation authority referred the action to an administrative separation board.  On 27 October 2010, the board found there was sufficient evidence to support a finding that he did have a pattern of misconduct and recommended he be discharged and issued an Honorable Discharge Certificate.  A review of the board proceedings shows the decision to recommend issue of an Honorable Discharge Certificate was based on the fact that limited use information pertaining to his alcohol rehabilitation had been improperly introduced during the proceedings.

12.  On 16 November 2010, the separation authority approved his separation and directed he receive an Honorable Discharge Certificate.  On 7 December 2010, he was discharged accordingly.  He completed 9 years, 1 month, and 4 days of active military service.

13.  His DD Form 214 for the period ending 7 December 2010 shows in:

* item 25 (Separation Authority) - "AR 635-200, PARA 14-12B"
* item 26 (Separation Code) - "JKA"
* item 27 (Reentry Code) - "3"

14.  He provides seven memoranda of support from an officer and six NCOs bearing dates in October and November 2010.  The memoranda acknowledge the issues he had with alcohol, indicate he was working hard to improve himself, and state he was an asset to the Army and should be retained.  

15.  He states:

I was accused of nine offenses while serving in Korea.  Knowing that this was false, I elected to have my case heard in court-martial proceedings.  I was found not guilty on eight of the nine charges against me.  I was reduced to Specialist from Sergeant, and forfeited 1500 dollars of pay.  My chain of command was removed and reassigned soon after.  In retaliation for this, they recommend for a separation under Chapter 14-12b:  Patterns of Misconduct.  They also were attempting an Other Than Honorable Discharge, in order to take away most if not all of my benefits.

Even with letters from everyone that was in my new chain of command (I have enclosed copies) stating that I should not be discharged, [the 8th Army Commander] still decided to discharge me under Chapter 14-12b.  I was given merely ten working days to settle all of my affairs and leave Korea.

My discharge was honorable and my Re-Entry code on my DD214 is three.  I have recently discovered that this code means I cannot reenter the military.  Upon my return home I went to my recruiter.  As soon as I told him I had been involuntarily separated, he told me there was nothing he could do for me.  I know that this is incorrect.

I was forced to leave my wife in Korea.  I am newly married and this separation has already caused a great strain on my spouse and myself.  I am a veteran, having served a fifteen month tour in Iraq from 2003-2004….I have already served nine and a half years in the military.  I am dedicated to the military, and wish to continue to serve my country.  I do not understand how a Soldier with an Honorable discharge is not allowed back into the service, even after his punishment(s) are completed.

16.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is 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 regulation.

17.  Army Regulation 635-200 states a Soldier is entitled to an honorable characterization of service if limited-use evidence is initially introduced by the Government in the discharge proceedings, and the discharge is based upon those proceedings.

18.  Army Regulation 600-85 states, in pertinent part, limited use prohibits the use by the Government of protected evidence against a Soldier in actions under the UCMJ or on the issue of characterization of service in administrative proceedings.  Additionally, the policy limits the characterization of discharge to “Honorable” if protected evidence is used.  Protected evidence under this policy includes results of a command-directed biochemical testing that is inadmissible under the Military Rules of Evidence.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table 2-2 shows SPD code "JKA" is applicable to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b.  

20.  The SPD/Reentry (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 codes and corresponding RE codes.  The table shows the SPD code of "JKA" has a corresponding RE code of "3."

21.  Army Regulation 601-210 (Personnel Procurement - Active and Reserve Components Enlistment Program) states individuals with an RE code of "3" are  not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  The regulation states a waiver may not be submitted until a 24-month waiting period has elapsed since an individual was separated or discharged from any component of the Armed Forces for misconduct.  The Commanding General, U.S. Army Recruiting Command, is the approval authority for Regular Army and U.S. Army Reserve applicants and the Chief, National Guard Bureau, is the approval authority for Army National Guard applicants.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not show, and the applicant has not provided evidence showing error or injustice in his discharge processing.  The record shows he was counseled on numerous occasions and convicted by a summary court-martial for behavior prejudicial to good order and discipline.  The accumulation of incidents clearly constituted a pattern of misconduct, and he was properly discharged on those grounds.  The record shows his rights were protected throughout his discharge processing.

2.  Because he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b, he was properly assigned RE code "3."  The governing regulation provides that RE code "3" indicates an individual may not reenter military service without a waiver and that requests for a waiver may not be submitted until a 24-month waiting period has elapsed.  The applicant may contact a recruiter regarding submission of a waiver when the prescribed waiting period has elapsed.  He should note, however, that submitting a request for a waiver will not guarantee approval.  Waivers are granted after consideration of the circumstances that led to assignment of RE code "3" and the needs of the Army. 

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)                                         AR20110004199





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ABCMR Record of Proceedings (cont)                                         AR20110004199



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