RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 FEBRUARY 2007
	DOCKET NUMBER:  AR20060006304 


	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.



Director


Analyst


The following members, a quorum, were present:



Chairperson



Member


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, in effect, that his rank be restored, reimbursement for storage, travel pay entitlements and accrued leave.  Additionally, he requests that his reentry code be changed from RE-3 to RE-1.  

2.  The applicant states that he was originally discharged under other than honorable conditions; however, his discharge was changed to honorable.  Therefore, he requests his records be corrected as if the character of service of under other than honorable conditions never existed. 

3.  The applicant provides a memorandum from the Army Discharge Review Board (ADRB).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he served 4 years in the United States Marine Corps prior to enlisting in the Regular Army on 28 August 2000.  He served in the Army for 3 years and was separated on 27 August 2003 in the grade of E-4 with an Under Other Than Honorable Conditions Discharge.

2.  The applicant’s DD Form 214 shows his pay grade as E-4 and lists the effective date of his pay grade as 22 August 2003.  His character of service is listed as under other than honorable conditions with the separation authority listed as AR 635-200, paragraph 14-12c.  The separation code is listed as “JKQ” with a reentry code of “3.”  The narrative reason for separation is listed as misconduct.

3.  DA Form 4430-R (Department of the Army Report of Result of Trail) shows that the applicant was tried and sentence adjudged by a Summary Court-Martial on 22 August 2003, at the 1st Engineer Battalion, Fort Riley Kansas.  The applicant was found guilty of unlawful entry, two specifications of larceny, and conspiracy.  He was sentenced to reduction from grade E-5 to grade E-4, a forfeiture of $1,222.00, and restriction to the post for two months.  

4.  On 20 August 2003, the commander informed the applicant of his intent to initiate action to separate him under the provisions of Army Regulation 635-200, chapter 14, for commission of serious offenses.  The applicant signed the memorandum indicating that he was afforded the opportunity to consult with council and advised of his rights.  He waived consideration of his case by an administrative board. 

5.  On 25 August 2003, the commander, Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Fort Riley, Kansas, directed that the applicant be separated from the Army prior to the expiration of his current term of service, under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense.  The commander directed that the applicant be discharged and furnished an Under Other Than Honorable Conditions Discharge.  

6.  On 14 October 2005, the ADRB reviewed the applicant’s case and determined that relief was warranted.  The board stated, in pertinent part, that Army Regulation 635-200, chapter 14 prescribes procedures for separating members for misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or 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.  

7.  The ADRB noted that the applicant was administratively discharged on his expiration term of service date, 27 August 2003.  Army regulations mandate that only an honorable characterization of service may be awarded to an individual upon completion of his or her enlistment.  Accordingly, the board found the characterization of the applicant’s service was improper and granted an upgrade of characterization of service to fully honorable.  Additionally, the board found that the reason for discharge, misconduct, was both proper and equitable.

8.  Transportation/Housing Information Sheet, contained in the applicant’s OMPF, shows that he resided in government housing at the time of his separation, and was accompanied by four family members.

9.  Orders 239-0006, dated 27 August 2003 show that the applicant was assigned to the US Army Transition Point, Fort Riley, Kansas.  His report date was listed as 27 August 2003.  The orders verify that the applicant had dependents.  Additionally, Fort Dix, New Jersey was listed as the place the applicant entered or was ordered to active duty.

10.  The Joint Federal Travel Regulation (JFTR) Volume 9 provides guidelines on members’ travel, transportation, and storage allowance for Soldier’s discharged under other than honorable conditions.  The regulation states, in pertinent part, that a member with dependents stationed in the Continental United States (CONUS) is authorized dependent travel and transportation allowance, to include the payment of per diem.  The same entitlement was also listed for Soldiers with an honorable discharge.  

11.  Additionally, the JFTR states members separating from active duty have 180 days from effective date of separation to ship household goods to their home of record (or any city of a lesser distance than their home of record) or place their household goods in government-arranged NTS.  Non-Temporary Storage will be provided in an approved commercial or government storage facility, whichever is nearest to the place where the household goods are located on the date of issuance of orders.  However a Soldier discharged with an under other than honorable conditions is not entitled to NTS.   

12.  Department of Defense Financial Management Regulation, Volume 7A, states that a member who is discharged under honorable conditions is entitled to payment of unused accrued leave.  A member who is discharged under other than honorable conditions forfeits all accrued leave at the time of discharge and is not entitled to payment for accrued leave, regardless of the length of time the separated member has served.

13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) defines reentry codes.  The regulation states, in pertinent part, that reentry code "3" applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was reduced to the grade of E-4 based upon his plea and finding of guilty in a Summary Court-Martial that was adjudged on 22 August 2003.  The fact that the ADRB upgraded his character of service to honorable has no bearing on his rank.  Therefore, in the absence of evidence to show that his pay grade of E-4 is in error or unjust, there is no basis to approve his request to restore his grade to E-5.

2.  The JFTR shows that there is no difference in travel entitlement for a Soldier and their dependents regardless of whether the character of service was listed as honorable or under other than honorable conditions.  However, the applicant’s entitlement to NTS was affected by his under other than honorable conditions discharge.  Therefore, based upon the ADRB’s decision to upgrade the applicant’s discharge to honorable, he is entitled to the benefits afforded to other Soldiers that separate with an honorable character of service.  Consequently, in the interest of equity and justice it would be appropriate to reimburse the applicant the money he used to secure storage in accordance with the JFTR.  The applicant must provide the necessary proof to the Defense Finance and 
Accounting Services (DFAS) before reimbursement is authorized.  Additionally, the applicant is entitled to payment of unused accrued leave once his leave has been verified by DFAS. 

3.  The ADRB upgraded the applicant’s character of service to honorable. However, the board found that the reason for his discharge, misconduct, was both proper and equitable.  Therefore, the reentry code listed on his DD Form 214 is correct. 

4.  Although the Army Board for Correction of Military Records has denied a change in his reentry eligibility code, this does not mean that the applicant has been completely denied the opportunity to reenlist.  Recruiting personnel have the responsibility for initially determining whether an individual meets the current enlistment criteria.  Recruiting personnel are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).  Therefore, since the enlistment criteria do change, and since the applicant has the right to apply for a waiver, it is suggested that he periodically visit his local recruiting station to determine if he should apply for a waiver.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___TK __  ___LB  __  __LD ___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the following:





a.  reimbursement of expenses up to 180 days after discharge for securing NTS storage upon verification by the DFAS; and

b.  entitlement to payment of unused accrued leave once his leave has been verified by DFAS.

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 restoring his rank, travel pay entitlements, and change of reentry code. 




_____ Ted Kanamine_______
          CHAIRPERSON




INDEX

CASE ID
AR20060006304
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070227
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY

ISSUES         1.
100.00
2.

3.

4.

5.

6.