RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:   AR20040010874


      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             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his reenlistment eligibility (RE) code be
changed.  However, based on his statements he is, in effect, also
requesting that the reason and authority for his separation be changed.

2.  The applicant states that the separation authority of Army Regulation
635-200, paragraph 14-12C(1) refers to being separated for misconduct due
to desertion or AWOL (absence without leave) and that at no time was he
AWOL.  He states he is applying for a direct commission and this error is
preventing him from receiving it.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 June 1998, the date of his discharge.  The application
submitted in this case is dated 23 November 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The records show the applicant entered active duty on 6 April 1994.

4.  On 20 August 1996 the applicant received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice for reckless driving.

5.  The applicant was awarded the Army Good Conduct Medal for the period
6 April 1994 through 5 April 1997.




6.  On 3 December 1997, the applicant was stopped by the German police at a
sobriety checkpoint.  It is reported that he failed a field sobriety test
and that the breathalyzer test administered by the German police registered
a blood alcohol content (BAC) of 0.171.  The applicant was detained and
turned over to US military authorities who conducted a second breathalyzer
test which registered a BAC of 0.149.

7.  On 14 January 1998 the applicant received NJP for driving under the
influence of alcohol.  His punishment was reduction to pay grade E-2 and
forfeiture of $300.00 pay per month for two months - suspended with
automatic remission if not vacated prior to 13 July 1998.

8.  The applicant's command initiated separation actions on 28 April 1998
under Army Regulation 635-200, paragraph 14-12c for misconduct based on the
two NJPs noted above.

9.  The applicant acknowledged he had been advised of and understood his
rights under the Uniform Code of Military Justice, that he could receive a
general discharge or an under other than honorable conditions (UOTHC) which
would deprive him of many or all of his benefits as a veteran, that he
could expect to experience substantial prejudice in civilian life if he
received this type of discharge, and that there is no automatic upgrading
or review.  After consulting with counsel he submitted a statement on his
own behalf and several letters of character from members of his chain of
command.  His unit commander recommended he receive an honorable discharge.

10.  The discharge authority reviewed the discharge packet and directed
that the applicant be separated with a general discharge under the
provisions of Army Regulation 635-200, paragraph 14-12c - misconduct.

11.  The applicant was discharged on 12 June 1998 with a general discharge.
 He had 4 years, 2 months, 7 days of creditable service with no time lost.
The separation authority listed on his DD Form 214 is Army Regulation 635-
200, paragraph 14-12c(1).  He received a separation program designator of
JKD with an RE-3.

12.  The applicant applied to the Army Discharge Review Board (ADRB)
requesting a correction of the reason and characterization of his service.
On 27 August 1999, the ADRB determined that his discharge was proper and
equitable.


13.  Following a personal appearance before a traveling panel of the ADRB,
the applicant was granted him a recharacterization of his character of
service to honorable.  However, the ADRB denied him a change of narrative
reason for separation.

14.  Army Regulation 635-5-1 prescribes the specific authorities, reasons
for separating Soldiers from active duty, and the separation program
designator (SPD) codes to be entered on DD Form 214.  An SPD of JKD
indicates a reason for separation for misconduct – AWOL or desertion
returnee.  An SPD of JKQ indicates a reason for separation of misconduct -
commission of a serious military or civilian offense.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 14-12c is used for separation
of Soldiers for the commission of a serious military or civil offense, if
the specific circumstances of the offense warrant separation and a punitive
discharge is, or would be, authorized for the same or a closely related
offense under the MCM.  The proper associated SPD for a separation under
this regulation is JKQ.  Discharges under this regulation require
assignment of an RE code of 3.

16.  Army Regulation 635-200, paragraph 14-12c(1) is used for Soldiers who
are being discharged for commission of a serious offense as an absentee
returned to military control from an AWOL status or desertion.  The
appropriate SPD for a separation under this regulation is JKD.  Discharges
under this regulation require assignment of an RE code of 3.

17.  Army Regulation 635-200, paragraph 14-3, provides that a discharge
under other than honorable conditions is normally appropriate for a Soldier
discharged under chapter 14.  However, the separation authority may direct
a general discharge if such is merited by the Soldier’s overall record.

18.  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.  An RE-3 is given to
individuals who are not qualified for continued Army service, but the
disqualification is waiverable.

19.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for driving while drunk under Article 111.

20.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  There is no indication that the applicant was ever AWOL.  Further, the
discharge authority directed the applicant be discharged under paragraph 14-
12c not paragraph 14-12c(1).

2.  These two factors combine to indicate that an error occurred at the
time of the issuance of the applicant's DD Form 214, in that the
inappropriate discharge authority was cited.  This error also resulted in
the utilization of the inappropriate SPD.

3.  Therefore, it is appropriate to correct both the authority for
separation and the SPD to Army Regulation 635-200, paragraph 14-12c with an
SPD of JKQ.

4.  While there is an error in the cited authority for separation and the
SPD used, the offense of drunk driving is a serious offense for which a
punitive discharge is authorized.  A narrative reason for separation of
misconduct is still appropriate.

5.  Since an RE-3 is the appropriate RE code under the revised paragraph,
no change of the RE code is warranted at this time.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__MKP      __LDS__  __MJF___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing he was
separated under Army Regulation 635-200, paragraph 14-12c with an SPD of
JKQ.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
correcting the narrative reason of discharge and the RE code.




                                _Margaret K. Patterson___
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010874                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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