IN THE CASE OF:	   

		BOARD DATE:	  30 April 2013

		DOCKET NUMBER:  AR20120017639 


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 although he made a lot of mistakes while in the service, the positive effects that the Army had on him are by far greater.  He offers that he was engaged to marry a German woman and was looking forward to becoming a husband and father.  He wanted that lifestyle so badly, it caused him to lie to his leaders about already being married.  This was further complicated after seeing the birth of a baby that was not his.  He wishes he could take his mistakes back.  He would be approaching his reenlistment period by now.  He can't help feeling that he is lost without the military structure in his life.  He desires to reenlist so he can regain some structure and normality in his life again.  He also desires to continue furthering his education by going back to school full time if he can join the Reserves or National Guard as an infantryman.  He wants to pursue a degree in aeronautical engineering and the military would definitely help him a lot in that endeavor.  He wants a second chance to wear the uniform that he once wore proudly, to be able to call himself a Soldier once again, to be able to fight for his country, and have a career in the Army.

3.  He provides:

* a self-authored statement
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 February 2009.  Upon completion of initial entry training, he was awarded military occupational specialty 19K (M1 Armor Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, at the time of his separation he held the rank/grade of private (PV1)/E-1.

2.  His military service record reveals a disciplinary history that includes:

	a.  several adverse counseling sessions for:

* disobeying direct and lawful orders on several occasions
* unhealthy and substandard living quarters several times
* arriving late to his place of duty on numerous occasions
* being absent from his place of duty several times
* missing numerous accountability formations
* disrespecting a senior enlisted Soldier on numerous occasions
* insubordination
* lack of discipline
* failing to provide documentation proving he was married
* having unauthorized guests in the barracks
* failing to stay awake during training

	b.  his acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for violating:

* Article 86, UCMJ twice by failing to go at the time prescribed to his appointed place of duty
* Article 92 UCMJ, by dereliction in the performance of his duties
* Article 91, UCMJ by being disrespectful in language toward a noncommissioned officer (NCO)
* Article 107, UCMJ twice by rendering false statements with intent to deceive

3.  His record contains a Military Police Report, dated 6 January 2011, which shows two Soldiers reported the applicant had stolen one of the Soldier’s  privately-owned vehicle (POV).  However, since both witnesses refused to provide sworn statements detailing the incident to the military police, there was no evidence to prove or disprove that the incident occurred in the manner alleged.

4.  On 20 January 2011, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for patterns of misconduct:  possession of a vehicle which had been reported stolen, violation of two lawful orders given by his company commander, on divers occasions failing to go to his appointed place of duty, making two false official statements, being disrespectful toward an NCO, dereliction of duty, and receiving numerous negative counseling statements for minor violations of regulations.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification on the same day.

5.  He consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation for misconduct and its effects; the rights available to him; and the effects of any action taken by him in waiving his rights.  He elected to waive his rights to submit statements in his own behalf.  He also indicated his understanding that if he received a discharge certificate or character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

6.  On 21 January 2011, the unit commander subsequently recommended that the applicant be separated from the service based on the aforementioned offenses.  He also rendered the following handwritten statement:  "Sir, This Soldier has been an embarrassment and an unbelievable drain on the NCOs that he has worked for.  Late for formations, a lack of military bearing, and a complete lack of respect for the chain of command.  I've been the commander of this Soldier twice, and the rehab transfer we conducted in January 2010, had little effect on his behavior and demeanor.  He has no place in my company or this Army, and he is a severe threat to discipline and morale."

7.  On 21 January 2011, the battalion commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.  He also rendered the following handwritten statement:  "The Co Cdrs [company commander's] words are clear and I whole heartedly support them.  His actions at the 7th Co are coming close to getting him put in jail.  This Soldier has been the biggest abuser of a system that cared for and attempted to rehabilitate him.  He needs to leave the Army now."

8.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12(b), for misconduct - pattern of misconduct.  He determined the applicant's service would be characterized as under honorable conditions. 

9.  On 15 February 2011, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as Under Honorable Conditions (General)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b), with a separation program designator (SPD) code of JKA and an RE code of 3
* his narrative reason for separation was "Pattern of Misconduct"

10.  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.

11.  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.

12.  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 JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12(b), for pattern of misconduct.

13.  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 JKA.

14.  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.

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.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 
14-12(b), by reason of pattern of misconduct.  The evidence also shows the applicant was assigned the appropriate SPD code of JKA and RE code of 3 at the time of his discharge.

3.  The applicant's strong desire to reenter military service is duly noted.  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.

4.  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)                                         AR20120017639





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ABCMR Record of Proceedings (cont)                                         AR20120017639



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