BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130007271 


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 an upgrade of his general discharge to an honorable discharge and amendment of his reentry eligibility (RE) code.

2.  The applicant states he was discharged from the Army because he was due to appear in civilian court.  However, the matter was resolved and he was never charged with an offense.  Therefore, his discharge should be changed.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the Regular Army on 22 March 2006 for a period of 3 years.  He was awarded military occupational specialty 88M (Motor Transport Operator).

2.  The applicant served overseas in Iraq from 12 July 2006 to 11 July 2007.  He reenlisted on 6 July 2007 for a period of 6 years.

3.  On 20 June 2008, the applicant accepted nonjudicial punishment for:

* failing to go at the time prescribed to his appointed place of duty (two specifications)
* being disrespectful in deportment to a noncommissioned officer (NCO)
* failing to obey a lawful order issued by an NCO

4.  On 25 June 2009, the applicant's company commander notified him that he was recommending his separation based on a pattern of misconduct.

	a.  The commander's reasons for the proposed action were that the applicant:

* disobeyed and disrespected a senior NCO
* failed to be at his appointed place of duty at the time prescribed
* was charged and found guilty of violating the conditions of his release
* violated orders of protection on divers occasions
* was arrested multiple times for suspected domestic assault

	b.  The applicant was advised of his rights and the separation procedures involved.

5.  The applicant consulted with legal counsel and he was advised of the rights available to him.

	a.  He was advised he could expect to encounter substantial prejudice in civilian life in the event a discharge under other than honorable conditions were issued to him.

	b.  The applicant acknowledged he understood that if he received a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and States laws and that he could expect to encounter substantial prejudice in civilian life.

	c.  He voluntarily waived a personal appearance before an administrative separation board contingent upon receiving a characterization or description of service no less favorable than honorable.

	d.  He declined to submit a statement in his own behalf.

	e.  The applicant and his counsel placed their signatures on the document.

6.  The company commander recommended approval of the applicant's separation for misconduct based on a pattern of misconduct.

7.  The intermediate commanders recommended approval of the applicant's discharge under other than honorable conditions.

8.  On 24 August 2009, the separation authority disapproved the applicant's request for a conditional waiver and directed the applicant's appearance as a respondent before an administrative separation board.

9.  On 24 September 2009, the applicant appeared before the administrative separation board with counsel.  The board recommended the applicant's discharge under honorable conditions (general).

10.  On 16 October 2009, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant's discharge with a general discharge.

11.  The applicant's DD Form 214 (Certificate of Discharge or Release from Active Duty) shows he was discharged on 27 October 2009 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, based on a pattern of misconduct.  His service was characterized as under honorable conditions (general).

	a.  He completed:

* 3 years, 5 months, and 28 days of net active service during this period
* 10 months and 18 days of total prior active service
* 3 years, 4 months, and 15 days of total prior inactive service

	b.  Item 26 (Separation Code) shows "JKA."

	c.  Item 27 (Reentry Code) shows "3."

	d.  Item 18 (Remarks) shows he had continuous honorable active service from 22 March 2006 through 5 July 2007.

12.  On 15 November 2010, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and a change to his RE code.

13.  On 31 August 2011, the ADRB determined that he was properly and equitably discharged and his request for a change in the character and reason for his discharge was denied.  The ADRB also noted the applicant requested a change to his RE code and found he was appropriately assigned an RE code of "3."

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, frequent incidents of a discreditable nature with civil or military authorities, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

	b.  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.

15.  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.

	a.  It identifies SPD code "JKA" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.

	b.  The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JKA."

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides the regulatory guidance for RE codes.  Table 3-1 (U.S. Army RE codes) shows RE code "3" applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge under honorable conditions should be upgraded to fully honorable and his RE code should be changed because he was discharged based on a civilian matter for which he was never charged and was resolved.

2.  Despite the applicant's contention, he provides insufficient evidence to refute the basis for the separation action.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason and type of discharge directed were appropriate and equitable.

4.  The evidence of record shows the applicant accepted nonjudicial punishment and his company commander initiated separation action against him for:

* disobeying and disrespecting a senior NCO
* failing to be at his appointed place of duty at the time prescribed
* being charged and found guilty of violating the conditions of his release
* violating orders of protection on divers occasions
* being arrested multiple times for suspected domestic assault

5.  Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

6.  Records show that an RE code of "3" establishing the applicant's ineligibility for enlistment/reenlistment without a waiver was correctly entered on his DD Form 214 in accordance with governing Army regulations.  Therefore, the RE code shown in item 27 of the applicant's DD Form 214 is appropriate and correct.

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 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)                                         AR20130007271



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ABCMR Record of Proceedings (cont)                                         AR20130007271



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