RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 MARCH 2007
      DOCKET NUMBER:  AR20060007929


      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. Gerard W. Schwartz            |     |Acting 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 that his records be corrected by changing his
rank, time in service, and his separation and reentry codes on his DD Form
214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that his pay grade should be shown as E-4, and
that his service time should be corrected to include his erroneous lost
time, and that his separation and reentry codes should be changed to
correspond with the upgrade of his discharge.

3.  The applicant provides a copy of his November 2003 Leave and Earning
Statement, a DA Form 4187 (Personnel Action) concerning his erroneous AWOL
(absent without leave) time, a FAX message regarding his Article 15, a DA
Form 4187 advancing him to pay grade E-4, a bar to reenlistment
certificate, a request for removal of a flagging action (Suspension of
Favorable Personnel Actions), a Case Report and Directive from the Army
Discharge Review Board, a copy of his original and corrected DD Forms 214,
and a counseling form in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 22 September 2000, for a
period of 4 years, in the pay grade of E-3.

2.  On 12 April 2001, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for failure to go at the time prescribed to his appointed place of
duty, and for disobeying a lawful order.  His punishment was reduction to
pay grade E-2, a forfeiture of $272.00 (suspended), 14 days extra duty, 14
days restriction, and an oral admonition.

3.  On 3 August 2001, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for failure to go at the time prescribed to this
appointed place of duty.  His punishment was reduction to pay grade E-1, 14
days extra duty, 14 days restriction, and an oral reprimand.

4.  On 5 September 2001 and 25 September 2001, two DA Form 4187s, from the
Commander, 19th Replacement Company, Fort Brag, North Carolina, reported
the applicant had been absent from accountability formation on 27 August
and
28 August 2001, and was therefore reported as being absent without leave
(AWOL).
5.  On 16 October 2001, a DA Form 4187 from the Commander, 126th Finance
Battalion, to the Commander, Bravo Detachment, 18th PSB, Fort Bragg, North
Carolina, states that the applicant had been erroneously shown as being
AWOL from 28 August 2001 and dropped from the rolls of the Army as a
deserter on
27 September 2001.

6.  On 27 June 2002, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for disobeying a lawful order, two specifications.  His
punishment was 14 days restriction.

7.  On 3 September 2003, a DA Form 4187 shows the applicant was promoted to
pay grade E-4, with a date of rank and effective date of 1 September 2003.

8.  On 8 September 2003, documentation shows the applicant tested positive
for illegal drugs during a 28 August 2003 drug test.

9.  On 16 September 2003, the applicant was counseled concerning his
illegal drug use.

10.  On 17 September 2003, a medical evaluation cleared the applicant for
separation.

11.  On 25 September 2003, a mental status evaluation cleared the applicant
for separation.

12.  On 2 October 2003, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for the illegal use of marijuana.  His punishment was
reduction to pay grade E-1, a forfeiture of $575.00 pay for 2 months
(suspended), and
45 days of extra duty and restriction (suspended).

13.  The applicant's bar to reenlistment was approved on 23 October 2003,
as a result of his use of an illegal substance.

14.  On 16 October 2003, 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 misconduct-commission of a serious
offense.  The applicant was advised of his rights and waiver options.

15.  On 16 October 2003, the applicant's commander recommended his
separation under the provisions of Army Regulation 635-200, Chapter 14.

16.  On 29 October 2003, after consulting with legal counsel the applicant
acknowledged his impending separation action.  He also acknowledged that he
understood that because he had less than 6 years of service he was not
entitled to have his case heard by an administrative separation board.

17.  On 3 November 2003, the battalion commander recommended approval of
the applicant's discharge with the issuance of a general discharge.

18.  On 14 November 2003, the applicant's discharge was approved with the
issuance of a general discharge, and instructions to close his flagging
action.

19.  On 11 December 2003, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 14, for misconduct.  His DD Form 214
indicates he had 3 years, 1 month, and 20 days of active service and 30
days of lost time.

20.  On 23 March 2004, the Army Discharge Review Board (ADRB) determined
that the applicant's discharge was improper and voted to change his
characterization of service to honorable and the narrative reason for
separation to Secretarial Authority.  The ADRB noted that the approval
authority for the applicant's separation rested with the general court-
martial convening authority; however, his separation action was approved by
the special court-martial convening authority.  The ADRB further noted that
their action did not include a change to his separation or reentry code.

21.  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.

22.  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 and the United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE-
Codes, including Regular Army RE-Codes.

23.  RE-3 applies to individuals who were not considered fully qualified
for reentry or continuous service at the time of separation, but the
disqualification is waivable.

24.  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 involuntarily separated
for misconduct.

25.  A "cross-reference" table, provided by officials from the U.S. Army
Human Resources Command-Alexandria, confirms that "RE-3" is the appropriate

RE-Code for individuals separated with an SPD code of "JKQ".

26.  Army Regulation 601-210, which establishes the policies and provision
for enlistment in the Regular Army and United States Army Reserve, states
that
RE-Codes may be changed only if they are determined to be administratively
incorrect.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was erroneously charged with being AWOL
from 28 August 2001 through 26 September 2001.  His DD Form 214 should be
corrected by deleting the notation of lost time in item 24 (Dates of Time
Lost During this Period) to "None", and by adding the 30 days of erroneous
AWOL time to item 12c (Net Active Service this Period) changing it to read
3 years,
2 months and 20 days.

2.  Evidence shows the applicant was reduced to pay grade E-1 as a result
of nonjudicial punishment for the use of illegal drugs.  There is no
justification for restoring his rank to pay grade E-4.

3.  The evidence confirms that the applicant’s RE-Code was assigned based
on the fact that he was not qualified for continuous service at the time of
separation. The applicant’s RE-Code is appropriate considering the basis
for his separation, and there is no basis to correct the existing code.



4.  Evidence shows the applicant was involuntarily discharged under the
provisions of Army Regulation 635-200, Chapter 14, for misconduct and was
appropriately assigned the separation code of "JKQ", therefore, there is no
justification for deleting or changing this code.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LE  __  __LB  ___  __MF___  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 changing his DD Form 214 item 12c to read 3
years, 2 months, and 20 days, and by replacing the dates in item 29 with
the word "None".

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, changing his separation code, and changing his reentry
code.




                                  _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007929                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070329                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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