IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20140021731 


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, a change of his reentry (RE) code from RE-3 to RE-1.

2.  The applicant states:

   a.  It seems impossible to reenlist in the Army due to his RE-3 code.  Shortly before being discharged he sought legal counsel, but he was discharged before he could receive the results of this meeting.  He has documentation proving his innocence and that the proper actions weren't taken prior to his discharge.  When he enlisted in the Army in 2013 he felt like had purpose in life.  He loved the feeling of being a part of something so much bigger and positive.  He needs a second chance to prove that he is a good person and he is ready to serve the country.

   b.  He personally believes that he was a target in certain situations.  When he was accused of using racial slurs, the very same accuser later revoked his statements and stated he only made the accusations because he was angry.  There isn't any excuse for wrongdoing, but for the simple fact that he was left behind at "sick hall" he was penalized.  One of the attached DA Forms 4856 (Developmental Counseling Form) states he left his battle buddy behind and then stated he was left behind.  He was also accused of two negligent discharges of his weapon; however, not that it's any better, it only happened once.  He believes his drill sergeant added situations to his counseling statements so that when he appeared before the company commander he would look like a total screw-up.  If that was the case it was his fault for providing the opportunity.  He had learned his lesson and truly believes he has what it takes to serve in the U.S. Army.

3.  The applicant provides copies of the following:

* four DA Forms 4856
* accuser's statement
* Election of Rights Regarding Separation Under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 11, Entry Level Performance and Conduct memorandum and statement
* Proposed Administrative Separation memorandum

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, in pay grade E-1, on 1 October 2013, for 3 years.  He was advanced to pay grade E-2 on 4 October 2013.  He did not complete advanced individual training (AIT) for award of a military occupational specialty.

2.  Between 6 and 16 October 2013, he received counseling for:

* reception and integration
* failing to follow regulations/instructions (failing to shave)
* failing to follow profile
* failing to obey orders or regulation and disregard of the Army Core Values of Duty, Honor, and Integrity
* missing training on 12 October 2013
* eating while on extra duty in the barrack and disregard of the Army Core Values of Duty, Honor, and Integrity
* recommendation for separation

3.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 22 October 2013, shows a Flag was initiated against him for adverse action.

4.  On 22 October 2013, he received counseling for a recommendation of action under the Uniform Code of Military Justice (UCMJ).

5.  His records contain and he provided copies of four DA Forms 4856 showing he was counseled on/for:


* 18 November 2013 – failing to follow instructions; leaving his battle buddy behind; and disregarding the Army's Core Values of Duty, Honor, Selfless Service, and Respect; the drill sergeant recommended nonjudicial punishment (NJP) under Article 15, UCMJ
* 5 December 2013 – negligent discharge of his weapon on 4 December 2013; the drill sergeant recommended NJP action
* 5 December 2013 – lack of discipline, disregard for all of the Army Core Values, and fighting and using a racial slur; the drill sergeant recommended NJP action
* 6 December 2013 – separation under chapter 11 for failure to adapt due to a pattern of misconduct

6.  On 30 October 2013, he accepted NJP under Article 15, UCMJ, for failing to obey a lawful order by wrongfully possessing gum on 11 October and wrongfully possessing a muffin in the barracks on 15 October 2013.

7.  He also provided a copy of a letter, dated 10 December 2013, wherein an individual stated the incident between him and the applicant was considered a serious case, but he did not expect the applicant to be chaptered out of the Army. He requested dismissal of the case against the applicant because he believed it was not necessary to file a complaint on the applicant.  He was just angry at the time of the report.  He only expected the applicant would receive an NJP or other necessary punishment, not a discharge from the Army.  The applicant deserved to graduate with the rest of them due to his hard work and leadership he had put effort into.  The applicant had worked hard for the platoon and helped many other privates.  The reason the applicant swore at him and called him names was because the applicant was stressed and everyone had a tough day.  The applicant didn't mean to say those words to him at all.

8.  On 11 December 2013, the applicant's company commander initiated action to discharge the applicant under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct.  The company commander stated the applicant had failed to adapt to a military environment due to lack of integrity, discipline, and self-control.  The applicant also lacked the ability to follow and obey orders and regulations.  He advised the applicant of his rights. 

9.  On 11 December 2013, after consulting with counsel, the applicant acknowledged the proposed separation action.  He also acknowledged that he understood he would receive an entry-level status separation with an uncharacterized character of service.  He waived his rights and elected to submit a statement in his own behalf.


10.  In his statement, the applicant stated:

   a.  He had made a few mistakes while in the training environment that he deeply regretted.  During basic combat training (BCT) another Soldier called him a racist, but that Soldier later wrote him a letter and stated that he only made the false report because he was mad.  He also had a negligent discharge which happened when he was not paying attention.  There were also two reports of him having food in the barracks and having gum while in the field.  He didn’t know that it was completely wrong because it went against the rule book while in a trainee status and it wouldn't happen again.

   b.  He was further counseled for walking away and leaving his battle buddy, but he actually was the battle buddy left behind, so he had some AIT Soldiers walk him to the corner by the barracks.  When he arrived at the barracks he immediately sought out the drill sergeant so he could explain what had happened.  The drill sergeant didn't let him explain the situation and proceeded to write him up.  He was not a problem or excuse maker, he honestly wanted to be a Soldier.

   c.  He didn't wake up one morning saying, "I think I will join the Army today."  He had four years invested in the Junior Reserve Officers’ Training Corps.  He always promised that he would push himself to the maximum, even with his injuries.  He knew joining the Army was the best decision he could have made.  That was his career.  He wanted to eventually go Airborne and someday become a drill sergeant.  He left home a nobody that the family could not depend on and he needed to return home a Soldier that the family could be proud of.  

	d.  He fully understood the Army didn't need him, but he wanted to be a part of the brotherhood.  His lesson learned while at BCT was it's not about you, it's about the Soldier to your left and your right.

11.  On 17 December 2013, the senior defense counsel requested the applicant's commander disapprove the applicant's administrative separation and order a rehabilitative transfer.  He stated under Army Regulation 635-200, paragraph     1-16, a rehabilitative transfer between training platoons was required before a trainee could be separated under chapter 11.  Although the transfer could be waived, it could be waived only when "common sense and sound judgment indicate" that the transfer "would serve no useful purpose" or fail to "produce a quality Soldier."  The regulation presumed that a trainee would be transferred before separation.  Based on his conversation with the applicant, he understood the applicant had been in the same platoon since arriving; therefore, he had not benefited from the foregoing transfer provision.  Allowing the applicant the transfer would give him the opportunity to demonstrate that he had worked to overcome that transition and could succeed in his training mission.

12.  On 18 December 2013, the separation authority waived the requirement for a rehabilitation transfer stating further retention of the applicant would not be beneficial to the Army.  He approved the applicant’s discharge and directed the issuance of an uncharacterized discharge.

13.  He was discharged accordingly in pay grade E-2 on 20 December 2013.  He was credited with completing 2 months and 20 days of net active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) lists in:

* Item 26 (Separation Code) the entry "JGA"
* Item 27 (Reentry Code) the entry "3"
* Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  Prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  

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. It states SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, 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.



16.  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 (USAR).  Table 3-1 included a list of the RA RE codes:

* 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
* 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

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant's company commander initiated action to separate the applicant for failure to adapt.  After consulting with counsel, the applicant acknowledged receipt of the proposed action.  Subsequent to approval of his discharge, the senior defense counsel requested a rehabilitative transfer for the applicant under the provision of the governing regulation.  

2.  There is no evidence of record and he provided none showing he was erroneously or unjustly denied a transfer as recommended by the senior defense counsel.  By regulation, the transfer could be waived only when "common sense and sound judgment indicate" that the transfer "would serve no useful purpose" or fail to "produce a quality Soldier."  

3.  The separation authority approved his discharge and he was assigned an SPD code of "JGA" indicating he was discharged due to entry level performance and conduct.  As such, he was assigned the RE code associated with his discharge.  There is no evidence and he has not provided sufficient evidence showing his assigned RE code of "3" is in error or unjust.  Therefore, there is no basis for granting him the requested relief.

4.  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 may process 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 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)                                         AR20140021731



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ABCMR Record of Proceedings (cont)                                         AR20140021731



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