IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130019246 


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 item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code of 1 instead of 3.

2.  The applicant states:

	a.  prior to leaving for basic combat training (BCT) his father was arrested for family violence;

   b.  during the first week of his initial training he was notified his father was coming home;
   
   c.  as the eldest son he felt it was his duty to return home to protect his brother and mother and therefore he refused to train; 

d.  one month later his father passed away; and

   e.  he regrets leaving and strongly asks the Board to consider his circumstances and change his RE code to allow him to serve his country now that his family is safe.

3.  The applicant provides:

* Certificate of Death
* State of Texas Indictment
CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army (RA) on 
19 February 2013.  He entered his initial entry training at Fort Sill, Oklahoma.

2.  On 28 February 2013, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for disobeying a lawful order.  He refused to board transportation and ship to BCT on
27 February 2013.

3.  His record contains two DA Forms 4856 (Developmental Counseling Form) dated 27 and 28 February 2013 which show he was formally counseled for the following infractions:

* disobeying a direct order from a non-commissioned officer
* displaying a lack of discipline and reasonable effort to ship to BCT
* disregard of Army Core Values
* recommendation for separation 

4.  On 28 February 2013, the applicant's unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter 11, Army Regulation 635-200, by reason of entry-level performance and conduct.  The unit commander cited the applicant's difficulties adjusting to the military environment, refusal to ship to BCT, and his decision not to train or remain in the service as his reasons for taking separation action.

5.  Having acknowledged receipt of the proposed separation action, its effect, the rights available to him, and the effects of any action taken to waive his rights, the applicant declined representation by counsel, a medical examination prior to discharge, and to submit a statement on his own behalf.

6.  On 7 March 2013, the separation authority approved the entry-level performance and conduct separation action for the applicant under the provisions of chapter 11, Army Regulation 635-200.  On 8 March 2011, the applicant was separated accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was separated under the provisions of chapter 11, Army Regulation 635-200, by reason of entry-level performance and conduct.  It also confirms he completed a total of 27 days of active service.


8.  The DD Form 214 also shows the following in:

* item 24 (Character of Service) - UNCHARACTERIZED
* item 26 (Separation Code) - JGA
* item 27 – "3"

9.  The applicant provides a State of Texas Indictment of aggravated assault with a deadly weapon pertaining to T____ J. D_____.  It shows this individual intentionally, knowingly, or recklessly caused serious bodily injury to S____ D_____ by striking the victim with a shotgun causing a broken bone in the victim’s arm, and the defendant did then and there use or exhibit a deadly weapon (4-10 shotgun), during the commission of said assault, and the said
S_____ D_____ was a member of the defendant's family.

10.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status.  This provision applies to personnel who could not meet the standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  An "uncharacterized" service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under entry level separation (ELS) conditions and an honorable discharge is rarely ever granted.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

11.  Army Regulation 635-200 provides 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, U.S. Army Reserve, and Army National Guard and includes a list of Armed Forces RE codes.  RE-3 applies to persons who have a waivable disqualification.

12.  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 the SPD code "JGA" is the appropriate code to assign to members separated under the provisions of chapter 11, Army Regulation 635-200, because of entry-level performance and conduct.

13.  The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The SPD code "JGA" has a corresponding RE code of 3.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of "3" should be changed to "1" based on the circumstances upon his entry on active duty.  While the circumstances, as indicated by the applicant and in the evidence he provides, were certainly unfortunate, there is no evidence to show he reported this dilemma to his chain of command in order to allow them to provide him assistance that may have benefited him during his crisis.  Instead, he took matters into his own hands, disobeyed lawful orders, and refused to perform initial entry training.  Therefore, his claim is insufficiently mitigating to grant the requested relief.

2.  The evidence of record confirms that separation action was initiated on the applicant while he was in an ELS status prior to completing 180 days of continuous active military service.  The record further shows the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  By regulation, the proper RE code to assign to members separated due to performance and conduct while in an entry-level status is an RE code of "3." Therefore, the applicant's assigned RE code is appropriate and remains valid.

4.  Finally, the applicant is advised that although no change is being recommended to his RE code, this does not mean that he is permanently disqualified from reenlistment.  An RE code of "3" is applicable to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  Therefore, if he desires to reenter the service, he should contact a local recruiter who is best qualified to determine his eligibility based on the needs of the Army, and who can process an RE code waiver.

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)                                         AR20130019246



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ABCMR Record of Proceedings (cont)                                         AR20130019246



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