RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012181 


	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. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Mr. John Infante

Chairperson

Ms. Susan Powers

Member

Mr. Qawiy Sabree

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 narrative reason for separation be changed.

2.  The applicant states, in effect, that his discharge was upgraded to an honorable discharge and that the incidents occurred in his personal life not in the military; however, it took a toll on his career.  He contends that he was a model Soldier.   

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

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  The American Legion, as counsel for the applicant, requests that the applicant’s narrative reason for separation, separation code, and reentry (RE) code be changed to reflect the applicant’s honorable service.

2.  Counsel points out that the domestic disputes of concern were civilian (off post) situations, that the applicant’s command chose to punish him for failing to repair, failing to follow lawful orders, and an incident of domestic assault in which only one spouse (the applicant) was charged, and that the accusations against the applicant were all related to the one issue of on-going domestic conflict.  Counsel states that the evidence of the domestic assault(s) off post is questionable verbal testimony, that the applicant’s spouse’s female witness for the police chose not to make a written statement, and that the civilian police and legal action resulted in only one day of civil punishment assessed to the applicant.  Counsel points out that the applicant’s unit did not assist him in marital counseling, conflict-resolution or anger management assistance, and only ordered him to stay away from his spouse.  He contends that such an order was neither practical nor fair to the applicant given his situation and financial involvement.  He also contends the order appeared to be discriminatory, that the applicant was restricted in his mobility and in resulting options to manage the bad situation he was in and protect his own interests and property, and the applicant’s spouse was never charged for her physical and mental abuse of the applicant.  Counsel further points out that the applicant has matured and is a positive and productive citizen, that he wishes to have the one-time domestic trauma (2 months) behind him in life, and that he wishes to have fairness when seeking development opportunities and employment opportunities. 

3.  Counsel provides a statement, dated 20 January 2007; and a Supplemental Report, dated 27 August 1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 28 June 1994 for a period of 3 years.  He trained as an avenger crewmember.  Records show nonjudicial punishment was imposed against the applicant on three occasions (absent from place of duty, failure to obey a lawful order, and failure to go) and discharge proceedings were initiated against him for a pattern of misconduct (failure to obey lawful orders, failure to report, and incidents of domestic assault).  On 18 October 1996, the applicant was discharged with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).

2.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B."  Item 
26 (Separation Code) on his DD Form 214 shows the entry, "JKA."  Item 
27 (Reentry Code) shows the entry, “3.”  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCONDUCT." 

3.  On 14 October 2005, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to honorable.  The ADRB determined that the reason for discharge was proper and equitable and voted not to change it.

4.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.  

5.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKA” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.  

6.  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 processing into the Regular Army and the U.S. 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.

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

8.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

9.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated September 1993, shows that when the SPD [Separation Program Designator] is "JKA" then an RE code of 3 will be given.  

DISCUSSION AND CONCLUSIONS:

The applicant’s and counsel’s contentions were noted.  However, the narrative reason for separation, the separation code, and the RE code used in the applicant’s case are correct and were applied in accordance with the applicable regulations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JI______  __SP____  __QS____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


__John Infante________
          CHAIRPERSON




INDEX

CASE ID
AR20060012181
SUFFIX

RECON

DATE BOARDED
20070403
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.