IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120007180 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* upgrade his uncharacterized discharge to honorable
* change his narrative reason for separation to something more favorable
* a personal appearance before the Board

2.  The applicant states:

* at the time he was discharged he was told he could reenlist in two years; however, after the two years passed, he found he was unable to reenlist
* no one in the military has a record of his military service
* he feels his reentry (RE) code was unfair
* he went before the Army Discharge Review Board (ADRB) and received an upgrade from an RE-4 to an RE-3
* he tried to reenlist with an RE-3 and found it not good enough to permit his reenlistment; therefore, he is requesting another hearing before the board

3.  The applicant provides his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records are not available to the Board for review.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of ADRB Docket Number AR20070002285, dated 15 February 2007 and ADRB Docket Number AR20080015055, dated 24 September 2008. 

2.  The applicant enlisted in the U.S. Army Reserve (USAR) on 25 August 2005.  It appears his entrance on active duty, on 8 September 2005, was for the purpose of attending basic combat training.  He was assigned to Company D, 2nd Battalion, 39th Infantry Regiment, Fort Jackson, SC.

3.  His record is void of the facts and circumstances which led to his discharge.  However, his record contains separation Orders Number 273-1300, issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, on 10 September 2005.  These orders directed he be discharged from the USAR, under the provisions of Army Regulation 635-200 (Enlisted Separations), with an effective date of 30 September 2005.

4.  His DD Form 214 shows he was discharged on 30 September 2005.  ADRB Docket Number AR20070002285 shows he was discharged under the provisions of Army Regulation 635-200, chapter 11, and received an under other than honorable conditions discharge, with the narrative reason of entry level performance and conduct, and an RE-4.  

5.  In February 2007, he petitioned the ADRB for an upgrade of his characterization of service, narrative reason for separation, and RE code.  The ADRB denied his request, on 24 September 2007.

6.  In September 2008, he reapplied to the ADRB to request correction of his DD Form 214 to upgrade his characterization of service.  The ADRB granted him partial relief by upgrading his characterization of service to uncharacterized and changing his RE code to RE-3, on 30 June 2009.

7.  He was reissued a DD Form 214 that shows in:

* Item 24 (Type of Discharge) - Uncharacterized
* Item 25 (Separation Authority) - Army Regulation 635-200, chapter 11
* Item 26 (Separation Code) - "JGA"
* Item 27 (Reentry Code) - "3"
* Item 28 (Narrative Reason for Separation) - "Entry Level Performance and Conduct"

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in entry-level status.  It states in pertinent part that when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applies to enlisted members of the Regular Army, who have completed no more than 180 days active duty on current enlistment by the date of separation, have demonstrated that they are not qualified for retention for one or more of the following reasons:  Cannot or will not adapt socially or emotionally to military life, cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

9.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It states in pertinent part that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

10.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator (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 JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200 by reason of entry-level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JGA.

12.  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.  Table 3-1 includes a list of Regular Army RE codes.

* an RE-1 applies to Soldiers completing their terms 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 for enlistment unless a waiver is granted

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, an applicant is not entitled to a hearing before the Board by regulation.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  It appears when the applicant entered active duty he did not or could not adjust to military life, presumably for lack of motivation and lack of self-discipline. Accordingly, his chain of command initiated separation action against him.  

3.  Lacking evidence to the contrary, the applicant's discharge for entry level performance and conduct, under the provisions of chapter 11 of Army Regulation 635-200, is presumed to have been administratively correct and in compliance with applicable regulations.  There is no evidence nor has the applicant provided evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights of were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.  

4.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  Since he was discharged for performance and conduct, an honorable discharge is not warranted.  

5.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not "derogatory."  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

6.  His SPD and RE codes were assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 11, due to his entry-level performance and conduct.  Absent the unacceptable performance during initial training, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his entry-level performance and conduct. The only valid narrative reason for separation permitted under this paragraph is "entry-level performance and conduct."

7.  The appropriate SPD code associated with this type of discharge is JGA and the corresponding RE code associated with this discharge is RE-3, both of which are correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reentering military service.

9.  An RE-3 code applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  If the applicant still desires to reenter military service, he should contact a local recruiter who can best advise a former service member as to the service requirements at the time and may submit a waiver for enlistment.






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)                                         AR20120007180



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ABCMR Record of Proceedings (cont)                                         AR20120007180



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