PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 April 2002
         DOCKET NUMBER: AR2002066886


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

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Mr. Donald P. Hupman, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his reentry (RE) code be changed from 4 to 1.

3. The applicant states that he was discharged for Army physical fitness test (APFT) failure but he received an Article 15 for going absent without leave (AWOL) for a family medical emergency. He left before signing his emergency leave papers. He provides no supporting evidence.

4. The applicant’s military records show that he enlisted in the Regular Army on 7 May 1998.

5. On 29 January 1999, the applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance for failing the end-of-course APFT twice and under the provisions of Army Regulation 635-200, chapter 14 for misconduct, commission of a serious offense for being AWOL from 25 November through 1 December 1998. The commander stated the applicant’s drill sergeant told the applicant he could not leave the unit until he was authorized to do so by the commander but he departed anyway. The commander stated that he would have willingly sent him on emergency leave if he had only followed the correct procedures. The recommendation indicates the applicant underwent a mental status evaluation but it is not available.

6. The applicant apparently received an Article 15 for his AWOL but it is not available.

7. On 11 February 1999, the applicant was advised by consulting counsel of the bases for the contemplated action. He stated he desired to submit a statement in his own behalf but one is not available.

8. On 28 March 1999, the appropriate commander approved the recommendation to separate the applicant under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance and under the provisions of Army Regulation 635-200, chapter 14 for commission of a serious offense and patterns of misconduct and directed he receive a general discharge under honorable conditions.

9. On 9 April 1999, the applicant was discharged. His Certificate of Release or Discharge from Active Duty, DD Form 214, shows he was discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct. He had completed 10 months and 26 days of creditable active service and had no lost time. He was given a separation code (SPD) of JKK (separation for misconduct, commission of a serious offense) and an RE code of 4.

10. 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. Paragraph 14-12c(1) states that an absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense.

11. Chapter 13 of Army Regulation 635-200 provides that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. The appropriate SPD code when the reason for separation is unsatisfactory performance would be JHJ.

12. Army Regulation 635-200, paragraph 2-1 provides that when a soldier is subject to separation for more than one reason, the following guidelines apply to procedural requirements: (1) the basis for each reason must be clearly established; (2) if the reason for separation requires processing under the Administrative Board Procedure, the entire matter will be processed as a board action; (3) if more than one reason for separation is approved, the guidance on characterization that provides the greatest latitude may be applied; (4) when there is any other conflict between a specific requirement for one reason and a general requirement for another reason, the specific requirement will be applied; and (5) if a conflict in procedures cannot be resolved based on the above, the requirement most favorable to the soldier will be used.

13. At the time the applicant was discharged, the SPD/RE Code Cross Reference Table provided that if the SPD code was JKK then an RE code of 4 would be given. The current SPD/RE Code Cross Reference Table, dated March 2001, provides that if the SPD code is JKK then an RE code of 3 will be given. Both the current SPD/RE Code Cross Reference Table and the one in effect at the time provide that if the SPD code is JHJ then an RE code of 3 would/will be given.

CONCLUSIONS:

1. The applicant was recommended for discharge under the provisions of both chapter 13 and chapter 14 of Army Regulation 635-200. With regards to the chapter 14 portion of the separation action, the Board is not entirely convinced it was clearly established that the applicant’s rehabilitation was impracticable or was unlikely to succeed and therefore there is some question as to whether separation action needed to be taken to separate him for misconduct. However, the applicant does not request a change in the narrative reason for his discharge and so this Board will not consider it. He may apply to the Army Discharge Review Board if he believes an error or injustice occurred in processing him for separation for misconduct.

2. The Board recognizes that at the time of the applicant’s separation RE code 4 was required when the SPD code was JKK. Under current standards, however, RE code 3 is required when the SPD code is JKK. RE code 3 would also have been required had the applicant been separated solely under the provisions of Army Regulation 635-200, chapter 13. The Board believes that it would be appropriate to change the applicant’s RE code to 3 to reflect current standards.

3. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That, as an exception to policy, the applicant’s DD Form 214 be amended to show he received an RE code of 3.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__rvo___ __rjw___ __dph___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                  Raymond V. O’Connor, Jr.
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002066886
SUFFIX
RECON
DATE BOARDED	20020409
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	100.03
2.
3.
4.
5.
6.