RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011588 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Thomas M. Ray

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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, upgrade of the reentry (RE) and Separation Program Designator (SPD) codes that are shown on his discharge document.

2.  The applicant states, in effect, that he has an RE Code of RE-3 and an SPD Code of JKA and would like them changed so that he may reenlist full-time in the Army National Guard (ARNG).  He also states that during his prior military service he was married with a child, served as a correctional officer, and was very disciplined and self-motivated.  He further states that the closing of the Regional Corrections Facility where he was assigned resulted in his reassignment to another installation.  The applicant adds, in effect, that the move caused major turbulence in his family that resulted in divorce.  As a result, the applicant states that his reasons for joining the military were gone and adds that he was young, hurt, and no one wanted to help him.  Consequently, he started drinking heavily trying to cope with his situation, but nothing seemed to go right.  The applicant states that he did not know until recently that his RE and SPD codes would prevent him from reenlisting full-time in the ARNG.  The applicant also states, in effect, that he has grown up a lot, obtained a commercial driver's license, is currently attached to the 2222nd Transportation Company in Arizona, and his goal is to be a Drill Sergeant.  The applicant concludes by asking for a second chance "To Be All That He Can Be."

3.  The applicant provides a self-authored statement with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 23 January 1998, the date of his discharge from the Regular Army (RA).  The application submitted in this case is dated 8 August 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.  The applicant’s prior military service records were not available for the period under review.  However, the applicant's Official Military Personnel File (OMPF), was available via the U.S. Army Interactive Personnel Electronic Records Management System (iPERMS) online application and contained the applicant's current ARNG OMPF.  The OMPF shows that the applicant was granted a waiver of disqualification (i.e., for misconduct) and enlisted in the ARNG for a period of
6 years on 24 July 2006.  On 1 August 2006, the applicant was awarded military occupational specialty (MOS) 88M (Motor Transport Operator).  The applicant's OMPF indicates he is currently assigned to the 2222nd Transportation Company, Tucson, Arizona.

4.  The applicant's OMPF in iPERMS contains a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 23 January 1998.  This document shows that the applicant initially enlisted in the U.S. Army Reserve (USAR) on 1 May 1995 and entered active duty in the RA on 13 September 1995.  Upon completion of basic combat training and advanced individual training, the applicant was awarded MOS 95C (Corrections Specialist).

5.  The applicant's DD Form 214 shows that he was discharged under honorable conditions, on 23 January 1998, in accordance with the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b (Misconduct).  The DD Form 214 shows that, based on the authority and reason for his discharge, the applicant was assigned an SPD code of "JKA" and an RE code of "3."  At the time of his discharge, the applicant completed 2 years, 4 months, and 11 days of net active service during the period now under review.

6.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), in effect at the time of the applicant's discharge, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The issuance of a discharge under other than honorable conditions is normally considered 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.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time of the applicant's separation, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of 
"JKA" as the appropriate code to assign RA Soldiers discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 who are discharged for misconduct.

8.  Pertinent Army regulations, in effect at the time of the applicant's discharge, provide that prior to discharge or release from active duty, the individual will be assigned an RE code, based on their military service records or the reason for discharge.  RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA) and the Army Reserve (AR).  Paragraph 3-20 (Verification of prior service) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had PS in any U.S. Armed Force will not be enlisted in the RA or AR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center (DMDC) via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

10.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the AR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate email address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE and SPD codes should be changed because he wants to be eligible to reenlist full-time in the ARNG.  However, the applicant provides insufficient documentary evidence to support his claim.


2.  The applicant's separation action from the RA was not available for review.  However, there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  As a result, the applicant's discharge is presumed proper and equitable.

3.  The evidence of record shows that the SPD codes issued by the U.S. Army at the time of a Soldier's separation are based upon the narrative reason and regulatory authority for separation.  The evidence of record also shows that SPD Code "JKA" is the correct SPD code assigned to an enlisted Soldier separated for misconduct under the provisions of Army Regulation 635-200, paragraph
14-12b.  As a result, the SPD code assigned was and remains valid.  In addition, the RE-3 code he received was appropriately assigned based on the authority and reason for his separation.  As a result, the RE-3 code assigned was and remains valid.  Therefore, the applicant is not entitled to correction of his records.

4.  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 this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 January 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
22 January 2001.  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

___TMR__  ___JCR_  ___JRH _  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.




_____Thomas M. Ray______
          CHAIRPERSON




INDEX

CASE ID
AR20060011588
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/01
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19980123
DISCHARGE AUTHORITY
AR 635-200, Paragraph 14-12b  
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.