MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 18 NOVEMBER 2003
                  DOCKET NUMBER: AR2003086151

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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: In effect, that his reenlistment eligibility (RE) code and his separation program designator (SPD) code be corrected to permit him to enlist in the Army National Guard.

APPLICANT STATES: In effect, that his under other than honorable conditions discharge was recently upgraded to a general discharge and he is now attempting to enlist in the Army National Guard. However, he was informed that he could not enlist with his existing RE and SPD codes. He states that he would like the codes changed to “equal the upgrade to an Honorable separation….” In support of his request he submits a copy of his upgraded discharge document.

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

He entered active duty, in pay grade E-2, for a period of 4 years on 7 May 1998. Based on his 4 year enlistment, the applicant’s scheduled separation date would have been established as 6 May 2002.

The applicant was promoted to pay grade E-3 in July 2000 and to pay grade E-4 in January 2001.

In April 2001 he was reassigned to an air defense artillery element in Korea.

He was punished under Article 15 of the Uniform Code of Military Justice in August 2001 for being disrespectful, disobeying a lawful order, and eight specifications of uttering bad checks between April and May 2001. His punishment included reduction to pay grade E-3.

In December 2001 he was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for two specifications of failing to go to his appointed place of duty, two specifications of disobeying a lawful order, and one specification of being disrespectful. As a result of this UCMJ action, the applicant was reduced to pay grade E-2.

Documents available to the Board indicate that the applicant received numerous counseling statements commencing in July 2001 and continued until just shortly before his separation from active duty. The counseling statements involved a variety of issues, including the applicant’s appearance, his attitude, financial mismanagement, disrespectfulness, violating his profile, and violating local regulations regarding tattoos and body piercings.

The applicant’s unit commander, in an undated document, initiated action to administratively separate the applicant from active duty under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct. The action was likely initiated on 9 April 2002, the day the applicant’s records were flagged. The suspension of favorable actions document [flag] indicates the applicant was pending elimination. The applicant’s commander cited the applicant’s numerous offenses of being late for duty, his disrespect, and his failure to maintain sufficient funds to cover his checks, as the basis for his recommendation. The commander indicated that he was recommending that the applicant receive a general discharge.

The applicant’s defense counsel argued that the applicant was near his scheduled separation date (ETS) and had not been given an opportunity for a rehabilitative transfer. He stated that the applicant should be given the opportunity for rehabilitation, or in the alternative, permitted to remain on active duty until his scheduled separation date.

The applicant’s commander countered that the applicant has been afforded every opportunity for rehabilitation, had served under three different commanders, three different platoon leaders, three different platoon sergeants, four different section sergeants, and a host of various team leaders. He specifically noted that the request for separation should be processed expeditiously to prevent the applicant from “ETS’ing and possibly reenlisting in the active component or the National Guard.”

The commander’s recommendation was approved and on 4 May 2002 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b. At the time of his separation he had 3 years, 11 months, and 4 days of creditable service. His RE code is recorded as “3” and his SPD code is recorded as “JKA.”

The applicant appealed the characterization of his discharge to the Army Discharge Review Board. In August 2002 the Army Discharge Review Board found that the length of quality of the applicant’s service mitigated his misconduct and as such, voted to upgrade the characterization of the applicant’s service to fully honorable. That board also concluded that the reason for the applicant’s discharge was proper and equitable and voted not to change the reason for separation.

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 United States Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE codes, including RA RE codes. RE-3 applies to those individuals who were not considered fully qualified for reenlistment or continuous service at the time of separation, but for which a subsequent request for waiver could be submitted for the purpose of reenlistment at a later date under the provisions of Army Regulation 601-210. RE-3 applied to individual who were separated by reason of misconduct.

Army Regulation 601-210 states that an individual separated by reason of misconduct may apply for a waiver to enlist once a 2-year period has elapsed since his or her separation.

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. This analysis may, in turn, influence changes in separation policy. SPD codes are not intended to stigmatize an individual in any manner. SPD Code JKA applies to individuals who are separated as a result of misconduct. A “cross-reference” chart, provided by officials from the separations branch at the United States Army Human Resources Command-Alexandria, notes that RE-3 is the appropriate RE code for individuals who receive an SPD code of JKA.

Army Regulation 601-280 (Army Retention Program) notes that individuals in pay grade E-3 or below at the time of separation, who have been reduced, are not eligible for reenlistment or extension. Such Soldiers, who are separated on their scheduled ETS date, would receive an SPD code of JBK indicating they were involuntarily separated from active duty because they were ineligible for, barred from, or otherwise denied reenlistment. The “cross-reference” chart, provided by officials from the separation branch at the United States Army Human Resources Command-Alexandria notes that RE-3 is the appropriate RE code for individuals who receive and SPD code of JBK.

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. The evidence available to the Board indicates that the applicant’s pattern of misconduct commenced following his reassignment to Korea. While it is reasonable to argue that his more than 3 years of honorable service should outweigh the pattern of misconduct he established during his final year of service, and as such, warranted an honorable discharge, it does not change the original basis for his separation.

2. Even if the applicant had been permitted to remain on active duty until his scheduled separation date he would still have received an SPD code indicating that he had been involuntarily separated from active duty and an RE code of 3.

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. The Army Discharge Review Board’s decision to upgrade the character of the applicant’s separation does not, in and of itself, justify changing the applicant’s SPD or RE codes.

5. The applicant is advised that although the Board has determined that his
RE-3 and SPD codes were properly assigned; this does not mean that he is totally disqualified from returning to military service. The disqualification upon which the RE-3 code and SPD code were based may be waived for enlistment purposes. The applicant is advised that if he desires to enlist, 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 enlistment waivers for both the applicant’s RE code and his reason for separation.

6. 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

__JNS __ __MDM__ __BJE __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086151
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031118
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.	100.03
2.
3.
4.
5.
6.