IN THE CASE OF: BOARD DATE: 20 October 2009 DOCKET NUMBER: AR20090007619 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, that the narrative reason for her discharge and its applicable reentry (RE) code be changed to a more favorable code/reason. 2. The applicant states, in effect, that she would like to enter the active Army but with her DD Form 214 (Certificate of Release or Discharge from Active Duty) showing she was separated for misconduct, she has not been granted a waiver to join. She states, in effect, that she opened a checking account for her former husband who then mismanaged his personal financial accounts that led to a civil court judgment against her. She states she was not made aware of the civil court judgment until her commander initiated separation action against her. Further, her former husband falsified her signature on her personal checks, significantly contributing to her debts due to lack of insufficient funds in her account. She states that her separation was solely based on her former husband's misconduct. She states her former husband has been deported, she is trying to get her life back, and seeks to join the active Army. 3. The applicant provides, in support of her application, a letter authored by Neil A. M_____, dated 10 October 2000, and copies of personal checks that her former husband presented for payment with insufficient funds in the bank account. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 January 1998. She completed basic combat training and advanced individual training. She was awarded military occupational specialty 91E (Dental Specialist). The highest rank/grade she attained during her enlistment was specialist (SPC)/pay grade E4. 3. The applicant's military service record shows that she had a history of personal financial mismanagement. During the period 16 October 1998 to 15 December 1998, seven checks written on her personal checking account were returned for insufficient funds. The Newport News General District Court issued a judgment for $1,101.67 against the applicant for failing to voluntarily pay a financial institution for the reimbursement of bounced checks. On 1 August 2002, she was counseled for failing to maintain adequate money in her financial account. Checks totaling $3,918.75 were presented for payment with insufficient funds in the account. 4. On 5 September 2000, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against her in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Enlisted Personnel--Personnel Separations) for a pattern of misconduct. 5. The former spouse of the applicant wrote a letter, dated 10 October 2000, to her unit commander stating, in effect, that his spouse was not responsible for or involved in the actions that led to her commander recommending she be discharged for misconduct. In the letter, he admits writing the personal checks against her banking accounts as well as falsifying her signature. He states she opened an account that he solely used for his business and he admits to not maintaining sufficient funds in the account when checks were presented for payment. He concludes his statement by saying that the applicant is not responsible for all of the charges brought against her by her command. In addition, he states she is innocent. 6. On 24 October 2000, the applicant acknowledged receipt of the separation memorandum. She consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment. The applicant understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she could be ineligible for many or all benefits as a veteran under Federal and state laws. The applicant submitted statements in her own defense. 7. On 2 November 2000, the applicant's commander recommended her for discharge due to misconduct, a pattern of misconduct. The commander stated the applicant had shown a pattern of misconduct by failing to pay personal financial obligations, that she was unsuitable for further military service, and that her conduct was prejudicial to the good order and discipline of the Army. The commander recommended that the applicant's service be characterized as under honorable conditions. The commander also recommended a waiver of the rehabilitative transfer requirement. 8. On 5 November 2000, the separation authority waived further rehabilitative efforts and directed the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200 because of a pattern of misconduct, and directed issuance of a general discharge. 9. Accordingly, the applicant was discharged on 29 November 2000. The DD Form 214 she was issued confirms she was discharged with a character of service of under honorable conditions (general discharge). This form also shows that she completed a total of 2 years, 10 months, and 14 days of creditable active military service, that item 26 (Separation Code) shows the entry "JKA," and that item 27 (Reentry Code) shows the entry "3." 10. The applicant applied to the Army Discharge Review Board (ADRB) requesting that the narrative reason for her discharge be changed from misconduct to expiration of term of service. On 30 June 2006, the ADRB determined that it would be appropriate to change the applicant's discharge characterization of service to honorable as a matter of equity. The ADRB determined that the applicant's narrative reason for discharge with its applicable RE code was both proper and equitable. 11. Accordingly, the applicant's initial DD Form 214 with a separation date of 29 November 2000 was voided and a corrected DD Form 214 was issued that shows her characterization of service was honorable but that the narrative reason for separation remained misconduct, with its accompanying SPD of "JKA" and a RE code of "3." 12. As evidence to support her application, she submitted a character reference letter, which states, in effect, that she is a valued employee, a dedicated student graduating with honors, a committed volunteer in her community exhibiting sound moral and exceptional decision-making abilities, and a woman of impeccable character who has raised two daughters as a sole parent. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted Soldiers. Chapter 14 established policy and prescribed procedures for separating soldiers for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. 14. Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-6 included a list of the Regular Army 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-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted. 15. Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214. The primary purpose of the SPD code is to provide a statistical accounting of reasons for separation intended exclusively for the internal use of the Department of Defense. It states, in pertinent part, that the SPD code "JKA" is the appropriate code to assign to Regular Army Soldiers who have are involuntarily discharged for patterns of misconduct under the provisions of chapter 14, Army Regulation 635-200. 16. Separation Program Designator (SPD)/RE Codes Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers when they are separated. The table shows that for the SPD code "JKA", applicable RE code is "3." DISCUSSION AND CONCLUSIONS: 1. As a matter of equity, the ADRB upgraded the applicant's discharge to honorable but did not change the reason for her discharge for the facts and evidence show that she had a pattern of misconduct. While the applicant's former spouse admitted in 2000 to falsifying her signature and presenting checks with insufficient funds in the account, as the admitted owner of the bank account, she had a fiduciary responsibility to monitor the account transactions to ensure that sufficient funds were available when a check was presented for payment. It is also noted that this statement was considered when the applicant was being processed for discharge. 2. The evidence of record shows that the applicant’s assigned RE code was based on regulatory guidance because she was separated under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct. The narrative reason for separation permitted under paragraph 14-12b is "pattern of misconduct" and the appropriate RE code associated with this discharge is RE-3. 3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. Therefore, she is not entitled to relief. 4. The applicant's post-service accomplishments and her desire to enlist is commendable. However, the Board does not change a properly constituted military record to establish eligibility for a program or benefit. 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) AR20090007619 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090007619 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1