RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009150 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

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 narrative reason for separation be changed to reflect a fully honorable period of service.  

2.  The applicant states, in effect, that he was not informed of other options in lieu of discharge.  The applicant contends that he should have been given the option to apply for compassionate reassignment due to an illness in his family.

3.  The applicant continues that, at the time of his discharge, he was unaware of the severity of his Reentry (RE) code, and the problems it would cause when trying to reenlist. 

4.  The applicant provides an undated self-authored letter and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 17 October 1998 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 October 1998, the date of his separation from active duty.  The application submitted in this case is dated 13 June 2006.

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.  On 17 September 1997, the applicant enlisted in the Regular Army for a period of three years.  After completion of basic and advanced individual training, he was awarded, military occupational specialty (MOS) 92G1O (Food Service Specialist).

4.  On 18 June 1998, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $218.00 pay per month for one month and extra duty for 14 days.

5.  On 2 September 1998, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12a for minor disciplinary infractions.  The unit commander cited the reason for his proposed action was his failure to be at his appointed place of duty on various occasions; willful disobedience towards noncommissioned officers; derelict in the performance of his duties; failure to shave and appear for duty in the improper uniform; and uttering a check with non-sufficient funds.  The applicant was advised of his rights.  The applicant acknowledged notification of the separation action.  He consulted with counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

6.  On 30 September 1998, the separation authority directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12a for minor disciplinary infractions and issued a General Discharge Certificate, characterized as under honorable conditions.

7.  The applicant was discharged on 17 October 1998.  His DD Form 214 for the period ending 17 October 1998 shows he was discharged with a separation Reenlistment Code of "JKA" (Misconduct) and issued an RE code of RE-3.  

8.  The applicant provided an undated self-authored letter for clarification of the circumstances involved with his discharge.  He states he was stationed in Germany when his family informed him of his father's illness.  He requested leave which was denied because he did not have enough leave time.  He admits he went to a bar to blow off some steam and evaluate his situation.  He continues that he encountered the lieutenant who denied him leave at the bar which ended in an altercation between them.  

9.  The applicant goes on to state that the next day, in front of his unit commander, he was asked what he wanted to do.  He requested leave to go home and see his father.  His leave request was denied.  He states the unit commander again asked him what he wanted to do and he responded “go home.”  He continues that the unit commander discharged him.  The applicant further states that he was given a ride to the airport by his first sergeant who had just returned from a two week field training exercise.  

10.  The applicant states that the first sergeant asked him why he did not request compassionate reassignment, thereby not leaving the service.  He states by the time he received this new information he was discharged.  He states that the first sergeant told him to wait two years and try to reenlist again.

11.  The applicant states that he never wanted to leave the Army and now wishes he was informed of all options instead of just being pushed out of the service.  He continues that his discharge has caused some strain for the children he supports financially.  He finally states that he can be a positive asset to the Army and requests to be considered for eligibility for military service again. 

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time showed that the SPD code "JKA" as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "Misconduct" and that the authority for separation under this separation program designator was "AR 635-200, paragraph 14-12b."

14.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, establishes RE Code 3 as the proper reentry code to assign to Soldiers separated for Misconduct.

15.  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, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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.  

16.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

19.  There is no evidence in the available records which shows the applicant sought assistance from his chain of command, or any other individual for assistance for a compassionate reassignment or personal family issues.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation and assigned RE code of RE-3 should be changed to reflect a fully honorable period of service.

2.  The applicant's record of service included one nonjudical punishment for failure to be at his appointed place of duty.  His record of service also shows other incidents of indiscipline which was the bases of his separation action.

3.  Evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  The applicant also contends he should have been given the option of applying for a compassionate reassignment based on an illness in his family instead of being discharged.  There is no evidence in the available records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command, or any other individual based on his personal problems.  There is also no evidence in the available records which shows these problems were the cause of his indiscipline.

5.  The applicant's contentions do not demonstrate error or injustice in the narrative reason for discharge directed by the Army.  

6.  By regulation, the RE code assigned to members separated by reason of JKA for misconduct is RE-3.  In this case, the RE-3 code assigned the applicant remains valid based on the authority and reason for separation.  

7.  Persons who are assigned an RE-3 code are disqualified for continued Army service.  However, the RE-3 is a waivable code and the applicant may request a waiver of the disqualifying factor upon request for reenlistment in military service through the respective service recruiter personnel. 

8.  There is no evidence in the available records and the applicant has not provided sufficient evidence to show the reentry code issued to him was in error or unjust.  

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 October 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 October 2001.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEA____  _JLP___  __EEM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 
prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




	_James E. Anderholm___  
          CHAIRPERSON





INDEX

CASE ID
AR20060009150
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.