BOARD DATE:	  25 October 2011

		DOCKET NUMBER:  AR20110008146 


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, in effect, change of his reentry eligibility (RE) code from RE-3 to a more favorable code so he may reenter the Army.

2.  The applicant states he completed his first full term of service and his
RE code is in error.  He states with his previous service he is a strong candidate for correction of this administrative error.  The applicant states during the course of his military studies, he was educated in the military and has knowledge in detail with strong skills.  He is seeking an opportunity that will allow him to fully utilize his military skills, as well as gain new knowledge.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 August 2009
* an Honorable Discharge Certificate, dated 13 March 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 18 August 2005 for a period of 3 years.  He completed basic and advanced individual training and he was awarded military occupational specialty 45B (Small Arms/Artillery Repairer).

2.  On 13 March 2008, he was honorably discharged for the purpose of immediate reenlistment.  On 14 March 2008, he reenlisted for a period of
6 years.
3.  On 4 March 2009, the applicant was convicted by the U.S. District Court, Southern District of Texas for unlawfully attempting to aid a Mexican national to enter the United States.

4.  On 23 April 2009, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order.

5.  The applicant's record contains a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 24 April 2009 for failing to report
* 7 May 2009 for failing to report (two occasions) and being absent without leave (AWOL)
* 8 May 2009 for failing to report
* 12 May 2009 for failing to report
* 13 May 2009 for failing to report and being AWOL
* 14 May 2009 for failing to report (two occasions)
* 26 May 2009 for being AWOL

6.  Evidence of record shows that the applicant was AWOL during the following periods:

* 1 March 2009 - 15 March 2009
* 2 May 2009 - 4 May 2009
* 8 May 2009 - 10 May 2009
* 15 May 2009 - 17 May 2009
* 21 May 2009 - 25 May 2009

7.  On 11 June 2009, he accepted NJP under Article 15, UCMJ for eleven violations of failing to repair and four violations of AWOL.

8.  On 28 July 2009, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12b, for a pattern of misconduct.  The reasons cited by the commander were:

* a Federal conviction of attempting to illegally enter the United States with a citizen of Mexico
* acceptance of two Field Grade Article 15’s
* 
four instances of being AWOL
* eleven instances of failing to repair

9.  On 29 June 2009, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He was also advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12b.  The applicant requested counsel and he elected not to submit a statement in his own behalf.

10.  On 5 August 2009, the appropriate authority approved the separation action under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct, with a general discharge.  On 13 August 2009, the applicant was discharged accordingly.  He completed 3 years, 10 months, and 27 days of creditable active service with 25 days of time lost.

11.  The applicant's DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200, paragraph
14-12b with a separation code of "JKA," reentry code of "3," and a narrative reason for separation of a pattern of misconduct.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory soldier, further effort is unlikely to succeed or that rehabilitation is impracticable or the Soldier is not amenable to rehabilitation.  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.

13.  Army Regulation 635-200, paragraph 14-12b states Soldiers are subject to action per this section for a pattern of misconduct consisting of one of the following:

	a.  Discreditable involvement with civil or military authorities.

	b.  Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code "JKA" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of a pattern of misconduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKA.

15.  Army Regulation 635-200 further 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA 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 waivable.  They are ineligible for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulation, including the RE 3 code he was assigned.

2.  In view of the foregoing, there is an insufficient basis for granting the applicant's requested relief.

3.  However, this does not mean that the applicant has been completely denied the opportunity to reenter the Army.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who may process a waiver request.

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)                                         AR20110008146



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ABCMR Record of Proceedings (cont)                                         AR20110008146



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