IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014462 


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 general discharge to an honorable discharge and amendment of his reentry eligibility (RE) code 3 (RE-3) to RE-1 or RE-2.

2.  The applicant states his conduct was negotiable for completion of service.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter from the Army Discharge Review Board (ADRB)
* Enlisted Record Brief
* DD Form 458 (Charge Sheet)
* documents pertaining to his summary court-martial

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 October 2006.  He completed basic combat and advanced individual training and was awarded  military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private/E-1 at the time of discharge.

2.  The evidence shows the applicant pled guilty and was found guilty on 18 February 2008 by a summary court-martial of violating the Uniform Code of Military Justice (UCMJ) by making false statements to an officer, noncommissioned officer, and a special agent.

3.  On 22 April 2008, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification on 23 April 2008.  He requested consulting counsel; however, he did not submit statements on his own behalf.

4.  The unit commander subsequently recommended the applicant's discharge from the service based on making false official statements.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

5.  On 27 April 2008, the separation authority approved the applicant's separation and directed the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  He determined his service would be characterized as under honorable conditions.

6.  On 27 June 2008, the applicant 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 14-12c with a separation program designator (SPD) code of JKQ and an RE code of 3
* his narrative reason for separation was misconduct (serious offense)

7.  On 18 June 2009, the applicant appealed to the ADRB for an upgrade of his discharge to an honorable discharge.  The board found he was properly and equitably discharged and his request to change the character of his discharge was denied.

8.  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.

9.  Army Regulation 635-5-1 (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 SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense).

10.  The SPD/RE Code Cross Reference Table indicates that an RE code of 3 was the proper code to assign members separated with an SPD code of JKQ at the time of the applicant's discharge.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 2 applies to persons separated prior to the effective date of this regulation (28 March 1995); this code will not be used.

	c.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	d.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his record should be corrected by upgrading his discharge to an honorable discharge and amending his RE code from "3" to "1" or "2" were carefully considered and found to lack merit.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and 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, the applicant's discharge accurately reflects his overall record of service.  The evidence also shows the applicant was assigned the appropriate SPD code of JKQ and RE code of 3 at the time of his discharge.

3.  The applicant pled and was found guilty at a summary court-martial of making a false statement to an officer, noncommissioned officer, and a special agent.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge or to an amended RE code.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20110014462



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ABCMR Record of Proceedings (cont)                                         AR20110014462



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