IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120006941 


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 records as follows:

* The characterization of his service from misconduct to something else
* The Reentry (RE) Code from RE-3 to a more favorable code 

2.  The applicant states:

* His spouse made a false sworn statement and lied about what occurred on 23 August 2010
* She only made her statement because she was mad about Facebook, the internet, and for being depressed
* He never threatened her or put his hands on her or even talked loud to her
* He was denied a separation board by his commander
* He is a graduate of a law enforcement academy and deserves a second chance to serve the military

3.  The applicant provides:

* Emails from his former spouse
* Letter of support
* DA Form 2823 (Sworn Statement)
* Multiple in-service and post-service certificates of training and/or completion


CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 15 October 2004.  He entered active duty for training (ADT) on 4 January 2005 and completed required training for military occupational specialty 92Y (Unit Supply Specialist).  He was released from ADT on 12 May 2005 to the control of his Reserve unit. 

2.  He entered active duty for training on 29 May 2007 and subsequently served in Kuwait/Iraq from 25 June 2007 to 21 March 2008.  He was honorably released from active duty on 18 April 2008.  

3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service show he was awarded or authorized the Army Commendation Medal, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, and Armed Forces Reserve Medal with "M" Device.

4.  He continued his USAR service and while serving with the 319th Transportation Company, he completed several training courses.  On 15 April 2008, he was promoted to sergeant (SGT)/E-5.  

5.  He was ordered to active duty on 30 March 2010 and subsequently served in Kuwait/Iraq from 30 April to 2 December 2010.  He was assigned to the 319th Transportation Company.  

6.  On 4 September 2010, in Iraq, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* unlawfully striking another Soldier (Private (PV2) LW) on the face with his hands
* unlawfully choking her
* wrongfully communicating a threat to use a knife on her

7.  On 3 November 2010, the applicant’s immediate commander notified the applicant of her intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) for misconduct.  The specific reason is stated as unlawfully striking PV2 LW on the face with his hand on 24 August 2010 and breaking the commander's door and other property during a counseling session on 14 October 2010.  The immediate commander recommended an under other than honorable conditions discharge.  She also informed the applicant that if he were entitled to have his case heard by an administrative separation board, he could submit a conditional waiver. 

8.  The applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant indicated:

* He understood if he had 6 years of total active and Reserve service, he could request his case be considered by an administrative separation board (although he understood he had the right, he did not elect an administrative separation board)
* He understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued 
* He understood as a result of the issuance of an under other than honorable conditions discharge, he could be ineligible for many or all benefits as a veteran under Federal and State laws
* He elected not to submit a statement on his own behalf

9.  The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  

10.  On 12 November 2010, the applicant’s intermediate commander recommended approval of the applicant’s discharge with the issuance of an under honorable conditions (general) character of service.

11.  On 27 November 2010, a military attorney reviewed the separation packet and found it legally sufficient. 

12.  On 27 November 2010, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with a characterization of service as under honorable conditions (general).  On 18 December 2010, the applicant was accordingly discharged.  

13.  The DD Form 214 he was issued for this period of service confirms he was discharged with a general, under honorable conditions discharge.  This form further confirms that he completed 8 months and 19 days of creditable active military service during the period under review.  This form also shows in:

* Item 26 (Separation Code) - "JKQ" 
* item 27 (RE Code) the entry "NA"
* item 28 (Narrative Reason for Separation) - "Misconduct (Serious Offense)"

14.  On 24 January 2012, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged.  However, the ADRB noted an administrative error on the DD Form 214 in that he was given the entry "NA" in the RE Code block.  Accordingly, his DD Form 214 was voided and he was reissued a new DD Form 214 that reflects the following entries:

* Item 26 - "JKQ" 
* item 27 (Reentry Code) shows the entry "3"
* item 28 (Narrative Reason for Separation) - "Misconduct (Serious Offense)"

15.  The applicant submitted:

   a.  An email, dated 8 October 2010, from PV2 LW wherein she states that the applicant, her husband, and she got into an altercation on 23 August 2010.  She adds that she was at fault and that he did not do those things stated in his separation packet.

   b.  A sworn statement, dated 10 March 2011, authored by PV2 LW wherein she states that she was upset and depressed and she only wanted to hurt the applicant that night; so, she lied. 

	c.  A second email, dated 28 June 2011, from PV2 LW wherein she states that she made a false statement regarding the Article 15 and provided false information to the chain of command.

	d.  A letter of support from a colonel who states the applicant has apologized for his actions and regrets that he caused the command to seek the chapter 14 option.  

	e.  Multiple in-service and post-service certificates of training and completion.

16.  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 was 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.

17.  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.  It states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army RE codes. 

* An 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
* An 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 unless a waiver is granted
* An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct - serious offense.

19.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKQ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed serious misconduct in the form of assault, choking, and communicating a threat.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met 

and the rights of the applicant appear to have been fully protected throughout the separation process.  The evidence of record further shows 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. 

2.  There is no evidence in his records and he provides none to support his contention that he was wrongfully or unjustly discharged.  Regardless whether PV2 LW lied then or is lying now with respect to what occurred in August 2010, the NJP the applicant received confirms the misconduct.  The applicant could have elected a court-martial in lieu of the Article 15 or he could have appealed the punishment if he felt there were extenuating circumstances at the time.  Additionally, although he acknowledged he understood he could request an administrative separation board if he had 6 years of total active and Reserve service at the time of separation, there is no indication he elected this option or that his commander denied him a board. 

3.  The quality of his service was diminished below that meriting an honorable discharge.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his discharge to a fully honorable discharge.

4.  His RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct,  commission of a serious offense.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for her discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct (serious offense)" and the appropriate RE code associated with this discharge is an RE-3.  Therefore, there is no basis for granting the applicant's requested relief.

5.  Furthermore, 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 process enlistment waivers for the applicant.


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)                                         AR20120006941





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ABCMR Record of Proceedings (cont)                                         AR20120006941



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