MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 29 NOVEMBER 2001
         DOCKET NUMBER: AR2001058670

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		Member
Mr. William D. Powers		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his DD From 214 (Certificate of Release or Discharge from Active Duty) item 27 (Reentry Code) be changed from “3” to “1”.

APPLICANT STATES: That he is currently serving in the Army National Guard with 2 years and 8 months of continuous service.

EVIDENCE OF RECORD: The applicant's military records show:

On 18 October 1990, the applicant enlisted in the Regular Army for a period of
4 years, at the grade of E-3. After completing Advanced Individual Training and Airborne Training he was assigned as a Nuclear-Biological-Chemical (NBC) Specialist.

The applicant was promoted to pay grades E-4, E-5 and E-6, on 22 June 1992,
1 August 1993, and 1 April 1995, respectively.

On 13 February 1996, the applicant was administered a field grade non-judicial punishment for four acts of misconduct committed on 26 January 1996; theft from the Post Exchange of three items of automation equipment and one jacket, each valued over $100. The applicant was reduced to E-5 and given extra duty.

On 8 March 1996, a medical examination cleared the applicant for separation.

On 12 March 1996, a Mental Status Evaluation cleared the applicant for separation, stating there was no evidence of any psychiatric condition which would warrant disposition through medical channels.

On 18 March 1996, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation
635-200, chapter 14, for commission of a serious offense. The reasons for his proposed action was the incident of theft on 26 January 1996 from the Post Exchange.

On 18 March 1996, having been advised of his rights by legal counsel, the applicant authenticated a statement with his signature in which he acknowledged notification of his commander's intent, waived consideration of his case by a board contingent upon his receiving a general discharge, declined representation by legal counsel and elected not to submit statements in his own behalf.

On 19 March 1996, the unit commander recommended that the applicant be separated under the provisions of Army Regulation 635-200, chapter 14, with the issuance of a general discharge.



On 20 March 1996, the appropriate separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

On 9 April 1996, the applicant was discharged under the above cited regulation, for misconduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he had a total of 5 years, 5 months, and 22 days of active military service, and was assigned the reentry code “3” and SPD (Separation Program Designator) Code of "JKQ".

On 18 June 2001, the Army Discharge Review Board (ADRB) upgraded the applicant's characterization of service from General Under Honorable Conditions to Honorable. The ADRB determined that the applicant's discharge was proper and equitable, but that the characterization of service was inequitable.

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, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, including those separated for misconduct, but the disqualification is waivable.

Army Regulation 635-5-1 states that SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. It notes that "JKQ" is the appropriate SPD code for individuals separated for misconduct.


A "cross-reference" chart, provided by officials from the Separations Branch at the U.S. Total Army personnel Command, confirms that "RE-3" is the appropriate
RE code for individuals who receive an SPD code of "JKQ".

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In spite of the fact that the ADRB upgraded the applicant's discharge to honorable, there was no determination by the ADRB or by this Board that his separation was improper. The ADRB decision to upgrade the applicant's discharge was based in part on the length and quality of the applicant's service which they felt mitigated his misconduct. The ADRB noted that the applicant voluntarily, in writing, waived an administrative separation board contingent upon his receiving a general, under honorable conditions discharge.

2. The fact that the ADRB chose to upgrade the applicant’s characterization of service is not justification to change his RE-Code. RE-Code "3" allows an individual to reenlist with a waiver, which was apparently accomplished in view of the fact he is now a member of the Army national Guard.

3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RVO _ __JPI __ __WDP__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058670
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011129
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.