IN THE CASE OF:	

		BOARD DATE:	 29 May 2012

		DOCKET NUMBER:  AR20110022616


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his reentry (RE) code as RE-1 instead of RE-3.

2.  The applicant states he was suffering from post-traumatic stress disorder (PTSD) when the infraction occurred but he did not receive proper help.  He states he has since received proper help to cope with his PTSD.

3.  The applicant provided no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 October 2001.  He completed training and was awarded military occupational specialty 63M (Bradley Fighting Vehicle System Maintainer).  Upon completion of training, he was assigned to the 3rd Battalion, 15th Infantry Regiment, 2nd Brigade, 3rd Infantry Division, at Fort Stewart, GA.

2.  He deployed to Iraq in support of Operation Desert Spring/Iraqi Freedom, from 14 October 2002 through 18 April 2003.
  
3.  On 22 May 2003, before the Liberty County Superior Court, State of Georgia, the applicant’s spouse was granted a Family Violence Ex Parte Protective Order against the applicant.

4.  On or about 21 July 2003, he was arrested for domestic violence against his spouse, for an incident occurring on or about 19 May 2003, and confined in the Liberty County jail, Hinesville, GA.  On or about 23 July 2003, he was released.

5.  On 28 July 2003, he was counseled on his responsibilities as outlined in the restraining order.  

6.  On 19 August 2003, he pled guilty to the charge of simple battery stemming from his arrest on or about 21 July 2003.

7.  On 19 August 2003, his probation supervisor granted him permission to travel to Spanaway, WA, for the purpose of visiting his children.

8.  On 26 August 2003, in the State of Washington, he violated the terms of probation he received for his simple battery conviction when he was arrested and charged with criminal assault (domestic violence).

9.  On 17 September 2003, he was counseled for displaying disrespect toward a noncommissioned officer (NCO).

10.  On 22 October 2003, the applicant was referred to Division Mental Health, Fort Stewart, GA for a mental status evaluation, wherein the Division Psychiatrist found him fully alert and oriented, displaying normal behavior, an unremarkable mood, clear thought process, normal thought content, and good memory.  He further remarked that the applicant:

* had the mental capacity to understand and participate in [separation] proceedings
* was mentally responsible
* met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3
* presented a clear mental status and was psychiatrically cleared for any administrative action deemed appropriate by command   

11.  On 18 November 2003, he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for using disrespectful language toward an NCO and disobeying the direct orders of an NCO, on or about 17 September 2003.  

12.  The applicant was notified of the initiation of separation actions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct – conviction by civil court.  On                20 November 2003, the applicant acknowledged receipt of the notification memorandum.

13.  The applicant acknowledged he had been advised by his counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He chose to not submit a statement in his own behalf.

14.  On 10 December 2003, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14.  He further recommended the applicant receive an under honorable conditions (general) discharge.  On 12 December 2003, the separation authority approved the applicant’s discharge due to misconduct – conviction by civil court, and directed he be given an under honorable conditions (general) discharge.

15.  On 23 December 2003, he was discharged accordingly.  The DD Form     214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14, with an under honorable conditions (general) discharge.  Item 26 (Separation Code) shows he was assigned a separation code of "JKB."  Item 27 (Reentry Code) shows he was assigned an RE code of "3."  Item 28 (Narrative Reason for Separation) shows "misconduct."

16.  His available record is void of any documentation, and he has not provided any documentation, that shows he suffered from PTSD during his period of active service.

17.  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, 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.

18.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve (USAR).  Chapter 3, of the regulation in effect at the time, prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including Regular Army RE codes.  

   a. An RE–1 applied to Soldiers who had completed their term of active service and were considered fully qualified to reenter the U.S. Army.

   b. An RE–3 applied to Soldiers who were not considered fully qualified for reentry or continued Army service at time of separation, but their disqualification was waivable.  These Soldiers were ineligible to reenlist without an approved waiver.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  Table C-1 (SPD Codes Applicable to Enlisted Personnel ) notes that "JKB" is the appropriate separation code for individuals separated for misconduct (conviction by civil court).

20.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table in effect at the time of his discharge shows the SPD code and a corresponding RE code.  The SPD code of "JKB" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant contends he was suffering from PTSD at the time of the events that led to his discharge, and he failed to receive proper help for his PTSD.  The evidence of record does not support this contention.  

3.  His records show he was convicted by a civil court of simple battery.  The record further shows he was later arrested for criminal assault (domestic violence) in violation of his terms of probation that resulted from his previous simple battery conviction.  This leaves no doubt that his command properly separated him for misconduct (conviction by civil court).

4.  He has provided no evidence to show the RE code issued to him at the time of discharge was improper, or inequitable, or should be changed now.  The applicant's separation code of "JKB" is consistent with the reason for his separation "misconduct – conviction by civil court" and the RE code of "3" is consistent with the separation code; therefore, the applicant is not entitled to an upgrade of his RE code.

5.  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)                                         AR20100022260



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110022616



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1