IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110016792 


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 to his reentry eligibility (RE) code to make him eligible for enlistment.

2.  He states he was reprimanded for a one time slip of judgment while serving on active duty and he has never been in trouble since then.  His criminal background check proves this.  He further states he would like to enlist to serve his country and knows he is needed with the current wars going on.

3.  He provides:

* Criminal History Record rendered by the Georgia Crime Information Center, Decatur, GA, with consent form
* five character reference letters

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 record shows he enlisted in the Regular Army on 11 January 2007.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  His record reveals a disciplinary history that includes numerous adverse counseling sessions addressing various offenses, to include:

* possessing a controlled substance
* disobeying a direct order
* failing to obey an order or regulation
* failing to report at the prescribed time to his place of duty
* being absent from his place of duty

4.  The applicant's record contains Headquarters, U.S. Army Infantry Center and Fort Benning, General Court-Martial Order Number 41, dated 24 July 2008, which shows he appeared before a general court-martial on 13 June 2008.  He was charged with, pled guilty to, and was found guilty of violating the following articles of the Uniformed Code of Military Justice:

* Article 107 by making a false statement with the intent to deceive
* Article 134 by wrongfully committing an indecent act along with another male to a woman who was not his wife

5.  On 16 July 2008, 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 14-12c, for commission of serious offenses in the form of:  rendering a false official statement, performing an indecent act, and possessing a controlled substance.

6.  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.  He acknowledged he understood if his discharge request were approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

7.  In his personal statement, the applicant stated he came from a family with strong military ties and desired to prove he could be a good Soldier and noncommissioned officer one day.  He admitted he had made some poor decisions, but he attested he had learned from his mistakes.  He stated he used his time in pretrial confinement to reassess which direction his life was going and how stupid mistakes can affect the lives of others.  He attested that during his court-martial trial the judge spoke very highly of him and said he would not discharge the applicant based on the character he was within him.  The applicant contended he did not think it was fair to give him a general discharge and a negative RE code which would bar him from further service.  He argued that the other two Soldiers involved in the incident were not punished and were continuing to serve.  He contended the fact that the rape charges against him were dropped was an indication of how weak the government's case was and he felt the prosecutors were trying to have him kicked out because they were dissatisfied with the results of the court-martial.  The applicant opined that the two charges he was convicted of could have been handled with nonjudicial punishment had he not been accused of rape.  In conclusion, he expressed he was eager for a fresh start, wanted to prove his worthiness, and was willing to do whatever the Army requested of him in support of the War on Terrorism.

8.  On 10 July 2008, the unit commander recommended his separation from the service and a waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

9.  On 6 August 2008, the separation authority waived further rehabilitative efforts and directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and issuance of an under honorable conditions character of service.

10.  On 7 August 2008, he was discharged accordingly.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) 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)"

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant provides a Criminal History Record rendered by the Georgia Crime Information Center on 10 December 2010.  This document shows he was arrested for a misdemeanor charge of shoplifting on 16 October 2009.

13.  The applicant provides character reference letters from individuals who essentially acknowledge his mistakes.  They attest that he has learned his lesson and developed into a productive member of society who has a strong desire to serve his country and recommend that he be afforded an opportunity to enlist.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 addresses separation for various types of misconduct for which Soldiers may be separated prior to their normal expiration of term of service.  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.

15.  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).

16.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that RE code 3 was the proper code to assign to members separated with SPD code JKQ.

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in 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 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  This includes anyone with a Department of the Army-imposed bar to reenlistment in effect at the time of separation or separated for any reason (except length of service retirement) with 18 or more years of active Federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be changed in order to make him eligible for enlistment was carefully considered and found to lack merit.

2.  He contends his discharge was based upon an isolated event, but his record reveals a disciplinary history that includes numerous adverse counseling sessions and a general court-martial conviction.

3.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense).  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.

4.  The applicant's post-service accomplishments are acknowledged.  However, based on his 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 upgraded RE code.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20110016792



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ABCMR Record of Proceedings (cont)                                         AR20110016792



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