RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012435 


	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.



	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, who was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 14 (Separation for Misconduct), essentially requests that her reentry (RE) code shown in Item 27 (Reentry Code) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a “3”, and that her Separation Program Designator (SPD) code shown in Item 26 (Separation Code) be changed from “JKQ.” 

2.  The applicant essentially states that she believes that these codes are incorrect because the offense which caused her discharge under the provisions of Chapter 14, Army Regulation 635-200 was not supported.  She also states, in effect, that she has already been awarded an upgrade of the general discharge that she was given when the Army Discharge Review Board upgraded her to an honorable discharge.  She further states that she never obtained any disciplinary actions in her military career which would warrant a discharge or codes that would not allow her to reenter the military.  

3.  The applicant provides her new DD Form 214 which shows that her character of service was upgraded to honorable in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 14 June 1996, the date of her discharge from the Regular Army.  The application submitted in this case is dated 31 July 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 military records show that she enlisted in the Regular Army on 15 April 1993.  She completed basic and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  She was then assigned to Fort Bragg, North Carolina for what would be her only permanent duty assignment.

4.  14 June 1996, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, and issued a General Discharge Certificate, which was subsequently upgraded to an Honorable Discharge Certificate by the Army Discharge Review Board.  The Separation Program Designator (SPD) code shown in Item 26 was “JKQ,” which identifies that the applicant was discharged for misconduct.  The SPD code of “JKQ” was also the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) for Soldiers separating under the provisions of AR 635-200, Paragraph 14-12c, for misconduct – commission of a serious offense.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper RE code to assign to Soldiers discharged for this reason.

5.  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.  Further, it also states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

6.  Paragraph 2-1 of Army Regulation 635-5-1 provides that SPD codes are three-character alphabetic combinations that 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 the Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE Codes, including Regular Army RE codes.  RE 3 applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation.  They are ineligible to reenlist unless a waiver is granted.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her RE code shown in Item 27 of her DD Form 214 should  be changed from a “3,” and that her SPD code shown in Item 26 should be changed from “JKQ.” 

2.  It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, for misconduct.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that her rights were not fully protected throughout the separation process.

3.  The applicant's RE code is based on her reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  Her narrative reason for discharge was based on her discharge under the provisions of Army Regulation 635-200, Chapter 14.  Therefore, there is no basis upon which to change this reason.  

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 June 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
13 June 1999.  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

__KLW___  ___E.F.__  _CD____  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.




____Kenneth L. Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012435
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
100.0300.0000
2.
110.0200.0000
3.

4.

5.

6.