BOARD DATE: 9 September 2014 DOCKET NUMBER: AR20130022374 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 under honorable conditions discharge be upgraded to an honorable discharge. He also requests his reentry eligibility (RE) code be changed from RE-3 to a more favorable code. 2. He states: a. His discharge should be changed to honorable because he has not had a fair chance. b. He was incarcerated for 11 months, went to trial, and was acquitted of all his charges. c. His unit also added a company grade Article 15, Uniform Code of Military Justice (UCMJ) and kicked him out for pattern of misconduct. He takes full responsibility for his actions and he wishes there was someone in his unit who actually looked out for and cared for Soldiers. d. No one helped him or tried to assist him in his time of need. His unit didn't attempt to help him by giving him a rehabilitation transfer, which was an available option. Instead, he was kicked out of the Army with a general under honorable conditions discharge. e. He believes he deserves an honorable discharge from the Army and he would also like his RE code changed because he never wanted to get out of the Army. He desires to reenter the Army and to continue to serve his country. 3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 23 September 2008. He served in Afghanistan from 22 June 2010 to 15 May 2011. 2. A review of his military record in the Interactive Personnel Electronic Records Management System revealed a U.S. Army Criminal Investigation Command (CID) Report, dated 15 January 2012, which shows he was investigated for willfully discharging a firearm and aggravated assault. The report indicates the applicant was treated for a non-life threatening gunshot wound to his left rib area and was released from the hospital. 3. On 15 February 2012, he was counseled because his leave was denied based on investigation with the El Paso Police Department and CID on 15 February 2012 and for making false official statements, violation of Policy Letter Number 21, and for traveling more than 150 miles from Fort Bliss, TX, without a mileage pass. 4. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, UCMJ for making a false official statement to a commissioned and noncommissioned officer. 5. On 18 March 2013, 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. The company commander cited the reasons for his proposed action as the applicant's receipt of an Article 15 on 29 March 2012 for lying to his chain of command and for making a false statement. Additionally, on 15 January 2012, the applicant engaged in disorderly conduct at a night club in El Paso, TX. His service record is void of NJP for this incident. He was advised of his rights. 6. On 27 March 2013, he consulted with legal counsel, was advised of the impact of the discharge action, and he indicated his statements would be submitted within 7 days. 7. In a 9 April 2013 email, Defense Counsel at Fort Bliss, TX, provided the applicant's rebuttal to the paragraph 14-12b administrative separation on his behalf. Counsel stated that: a. The applicant had an open door meeting with Major General (MG) P------ on 10 April 2013 and requested the applicant's commanding officer not take any final action on this separation until MG P------ had the opportunity to meet with the applicant. b. The applicant requested a rehabilitative transfer from his current unit to another unit on Fort Bliss, TX, or to another installation. This rehabilitative transfer was necessary because the applicant needed a fresh start. c. The applicant was facing an administrative separation board under the provisions of Army Regulation 635-200, paragraph 14-12c. The factual reason(s) for the action was that on 6 April 2012 the applicant was arrested by civilian authorities for two counts of murder. Counsel alleged this was the only stated basis for the separation action. d. The applicant's administrative separation board was scheduled for 11 February 2013, but it was postponed at the request of the applicant because he needed to prepare for his civilian trial. e. On 21 February 2013, the applicant was fully acquitted of all charges brought by the civilian authorities. f. On 13 March 2013, MG P------ terminated the applicant's administrative separation board proceedings upon the applicant's acquittal in civilian court. g. On 18 March 2013, the applicant's unit initiated a new administrative separation proceeding based on an Article 15 he received on 29 March 2012 and that he engaged in "disorderly conduct" on 15 January 2012. Counsel alleged the date and incident made the basis of the civilian case on which the applicant was fully acquitted. h. If these acts listed above were of any concern to the unit or if these acts were of any importance, the unit could have included them in the separation proceedings initiated for the 11 February 2013 board proceedings, but the unit did not do so. i. Since the applicant's acquittal on the civilian charges, he has been subjected to actions by the unit that call into question the unit's impartiality and fair treatment of the applicant. j. The unit has interfered with the applicant's ability to meet with his legal counsel. The applicant has been denied an Army Emergency Relief (AER) loan. The loan was initially approved in writing by Captain (CPT) B------ then the approval was withdrawn because those higher in the chain of command would not agree to support such a loan and the applicant was not given proper recovery time after being on Charge of Quarters (CQ) duty. The unit took him to clear post so that his separation from the Army could be expedited instead of giving him the necessary recovery time. k. The applicant was in civilian confinement for almost a year on charges for which he was ultimately acquitted. The applicant requests an opportunity to put these incidents behind him and "Soldier on." The applicant cannot "Soldier on" in his current unit because of the way he is being treated; therefore, he requested a rehabilitative transfer. 8. On 9 April 2013, the separation authority 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 under honorable conditions discharge. 9. On 22 April 2013, he was discharged accordingly. He completed 4 years and 7 months 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." 10. On 18 November 2013, the Army Discharge Review Board denied the applicant's request for a change in the character and reason of his discharge. 11. 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. 12. 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. 13. 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. 14. 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 a pattern 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 the applicant received an Article 15 for making a false official statement to a commissioned and noncommissioned officer. 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. __________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) AR20130022374 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130022374 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1