IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110022277 


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:

* redaction of all references of misconduct from his military record
* upgrade of his general discharge to an honorable discharge
* change of his narrative reason for separation to something more favorable
* change of his reentry eligibility (RE) code to RE-1 to allow him to reenter military service

2.  The applicant states he did access pornographic websites from a government computer; however, he did not fail to report to his appointed place of duty, disobey a noncommissioned officer by failing to conduct police call, or leave his post without permission.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter of recommendation
* a self-authored letter of explanation
* a letter from the Army Review Boards Agency
* a timeline of events
* a summary of events


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 April 2002.  He completed training and he was awarded military occupational specialty 14E (Patriot Missile System Enhanced Operator Maintainer).  The highest rank/grade he attained on active duty was specialist (SPC)/E-4.

2.  Records show on 21 March 2005, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for accessing pornographic material from a government computer on 8 July 2004 and for failing to go at the time prescribed to his appointed place of duty on
19 January 2005.

3.  On 23 May 2005, his commander processed a DA Form 268 (Report to Suspend Favorable Personnel Actions - FLAG) against him.  The FLAG was submitted as a non-transferable action for elimination from service.

4.  His record contains three DA Forms 4856 (Developmental Counseling Form) showing he received negative counseling statements on the following occasions:

* 25 August 2005, for not being at the right place at the right time in the right uniform, lying to a noncommissioned officer (NCO), falsifying a situation to get out of duty, and having his wife call the battery to get out of going to the range
* 31 August 2005, to revoke his leave and pass privileges
* 27 September 2005, for misplacement of his civilian drivers license

5.  On 3 October 2005, his commander notified him he was being recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administration Separations), paragraph
14-12b, for misconduct - a pattern of misconduct, with a general discharge.  The commander cited the following reasons for the action:

* accessing pornographic websites from a government computer and failing to go at the time prescribed to his appointed place of duty
* disobeying an NCO by failing to do a police call on the motor pool parking lot
* leaving post without permission from his chain of command

6.  On 3 October 2005, he acknowledged notification from his commander that he was being recommended for separation.


7.  On 5 October 2005, he consulted with legal counsel and he was advised of his rights and the basis for the contemplated separation, the possible effects of an under other than honorable conditions discharge, and rights that were available to him.  He requested representation by counsel and submitted
3 character letters and a personal statement.

8.  On 14 October 2005, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for a pattern of misconduct, with a general discharge.

9.  On 3 November 2005, he was discharged accordingly.  His DD Form 214 shows he completed 3 years, 6 months, and 9 days of creditable active service.  It also shows in:

* item 26 (Separation Code) the entry "JKA"
* item 27 (RE Code) the entry "3"
* item 28 (Narrative Reason for Separation) the entry "Pattern of Misconduct"

10.  On 11 May 2009, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 7 December 2009, the applicant appeared before a personal appearance hearing.  After carefully examining the applicant's record of service during the period of service under review, hearing his testimony, and considering the analyst's recommendation and rationale, the board determined that the applicant's discharge was both proper and equitable and unanimously voted to deny relief.  The applicant was so notified of the ADRB's decision by letter on 9 December 2009.

11.  He provided a letter of recommendation from the officer who approved his discharge as evidence.  The now retired officer recommends upgrade of the applicant's discharge and change of his separation code and reentry code.

12.  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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Further, it also states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.


13.  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.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  This regulation show SPD code of JKA is the correct code used to identify a discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE Codes, including Regular Army RE codes.

	a.  RE-1 applies to persons completing his or her term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met.

	b.  Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation
635-200, chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  However, on
28 February 1995 Army Regulation 635-200 was revised affecting the discontinued use of RE-2.

	c.  RE-3 applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation.  They are ineligible to reenlist unless a waiver is granted

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have all references of misconduct redacted from his military record, upgrade of his general discharge to an honorable, and change of his narrative reason for separation RE code was carefully considered and determined to lack merit.


2.  The evidence of record shows the applicant displayed a pattern of misconduct.  Accordingly, his chain of command initiated separation action against him.  The separation authority approved the recommendation for discharge and he was ultimately discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b with a general discharge.  His separation packet together with allied documents is correctly filed in his official military personnel file (OMPF).

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his history of misconduct, his service clearly does not merit an upgrade to his discharge.  It is further noted that a discharge under Army Regulation 635-200, chapter 14, paragraph 14-12b would normally result in an under other than honorable conditions discharge; however, it appears his chain of command considered his overall record of service and subsequently directed his separation with a general discharge.

4.  His separation code and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12b due to his pattern of misconduct.  The only valid narrative reason for separation permitted under that separation authority is "pattern of misconduct" and the appropriate separation code associated with this discharge is "JKA" which is correctly shown on his
DD Form 214.

5.  By regulation, an SPD code of "JKA" has a corresponding RE code of "3."  An RE-3 is assigned to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  They are ineligible unless a waiver is granted.

6.  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 may processing him for an RE code waiver.

7.  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 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)                                         AR20110022277



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ABCMR Record of Proceedings (cont)                                         AR20110022277



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