BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130013656 


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 his general discharge be upgraded to an honorable discharge and his reentry eligibility (RE) code be changed from RE-3 to a more favorable code.

2.  He states he is interested in attending school and rejoining the military as a Soldier.  He has really learned his lesson.  

3.  He provides no additional documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 June 2007.

2.  He served in Iraq from 1 April 2009 to 15 February 2010.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on four occasions for the following offenses:

* Failing to go to his appointed place of duty at the prescribed time on 14 September, 1 November, and 13 December 2007
* Failing to go to his appointed place of duty at the prescribed time on 12 February 2008
* Failing to go to his appointed place of duty at the prescribed time on 26 April 2010
* Being absent without leave (AWOL) from 29 to 31 March 2010
* Disobeying an order from a noncommissioned officer (NCO) on 5 May 2010
* Failing to go to his appointed place of duty at the prescribed time on 30 March 2011
* Being disrespectful in language toward an NCO on 23 February 2011

4.  On an unknown date, his company commander notified him of his intent to recommend him for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b, due to misconduct-pattern of misconduct.  He was advised of his rights.  

5.  On 6 August 2011, he consulted with legal counsel, was advised of the impact of the discharge action, and submitted statements in his own behalf.  He stated:

* He received NJP and has learned from his mistakes
* He believed he could be an asset to the U.S. Army
* He was an active duty Soldier for 4 years, deployed to Iraq in April 2009, and received a Combat Action Badge for action in August 2009
* He maintained a high level of physical fitness and qualified on numerous weapons
* He would like to remain on active duty and continue serving his country for at least 20 more years

6.  On 15 September 2011, the separation authority waived further rehabilitation and directed the applicant be discharged from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct with a general discharge.

7.  On 5 October 2011, he was discharged accordingly.  He completed 4 years, 3 months, and 8 days total active military service.  The DD Form 214 he was issued shows he was assigned a separation program designator (SPD) code of "JKA" and an RE code of "3."

8.  On 24 September 2012, the Army Discharge Review Board denied the applicant's request for a change in the character and reason of his discharge.

9.  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.  An under other than honorable conditions discharge 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.

10.  Army Regulation 635-200, paragraph 3-7a states 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 635-200 further states 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  RE-2 was discontinued on 28 February 1995.

	c.  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.

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 the SPD code of JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct (pattern of misconduct).  The SPD/RE Code Cross Reference Table, in effect at the time and currently in effect, stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKA.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The evidence of record shows he received four Article 15s for various offenses.

3.  His overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.  Although a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, it appears that his chain of command and the final approval authority considered his overall record of service resulting in the issuance of a general discharge under honorable conditions.

4.  After a thorough review of the evidence relating to the applicant's service, he has not presented sufficient evidence which warrants upgrading his general discharge to honorable.

5.  The evidence of record shows he was separated with a separation code of "JKA" and he was assigned an RE code of 3 in accordance with the governing regulation.

6.  His RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on misconduct - pattern of misconduct and he has not established a basis for changing his reason for discharge.  

7.  His service record is void of evidence that shows the reentry code assigned to him was in error or unjust.  However, his disqualification for reentry is waivable under the Army enlistment criteria.  If he still desires to reenter active service, he can contact his local recruiter to determine if he is eligible for applying for a waiver under the current Army enlistment criteria.



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.

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      _______ _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)                                         AR20130013656



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ABCMR Record of Proceedings (cont)                                         AR20130013656



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