RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20070004258 


	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. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann

Member

Ms. Karmin S. Jenkins

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, a change to his Reentry Eligibility (RE) Code and reason for his separation, and that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he received 3 Article 15s; one which was received the day after having surgery.  The applicant also states, in effect, he did not know what he was signing at the time and was not told it would lead to a bad discharge.  The applicant adds, in effect, the actions taken by military authorities were arbitrary, capricious or an abuse of discretion.  The applicant further states, in effect, that he completed all required punishments that were imposed by the Article 15s and he has since entered the Army National Guard (ARNG).  The applicant offers that he has completed his Master's degree and Officer Candidate School; however, the character of his discharge precludes him from becoming an officer in the Army.  The applicant also offers, in effect, that he has discussed his situation with Judge Advocate General officers who have indicated his discharge was too harsh for his misconduct.  The applicant concludes by stating that he was young at the time, but he is now 39 years old and has only a short period of time before he exceeds the maximum age to apply for appointment as an officer, and therefore, requests upgrade of his discharge.

3.  The applicant provides an undated self-authored letter; copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 August 1989; 2 DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ), dated 13 February 1989 and 5 April 1989; Continuation Sheet of a
DA Form 2627 for offenses on 26 June 1989; 3 Letters of Recommendation/ Reference, dated 18 October 2006; State of Minnesota, Department of Military Affairs, Minnesota Army National Guard (MIARNG), Roseville, MI memorandum, dated 30 December 2005, subject: Request for Exception to Policy for Initial Appointment; Department of Military Affairs, MIARNG, Office of the Adjutant, St. Paul, MI memorandum, dated 30 July 2003, subject:  Exception to Policy [Applicant's Name and Social Security Number]; and a Request for Waiver to Enlist in the ARNG, dated 24 March 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 August 1989, the date of his discharge from the Regular Army.  The application submitted in this case is dated 19 March 2007.

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 service records show that he enlisted in the ARNG on 11 January 1985.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 31K (Combat Signaler).  On 29 December 1986, he was separated from the ARNG based on his enlistment in the U.S. Army Reserve.  The applicant entered active duty in the Regular Army on 28 January 1987.  The applicant's military service records show his date of birth is 19 October 1967.

4.  The applicant’s military service records contain a copy of a DA Form 2627, dated 13 February 1989.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
13 February 1989, failing to obey a lawful general regulation by wrongfully driving his personally owned vehicle on the installation without a proper driver's license.  This document shows that the applicant requested a closed hearing and a person to speak in his behalf, and that matters in defense, mitigation, and/or extenuation were provided by the applicant to the commander.  Subsequent to the closed hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to the grade of E-3; extra duty for 14 days; and forfeiture of $216.00 to be suspended for 30 days, to be automatically remitted if not vacated before 22 March 1989.

5.  The applicant’s military service records contain a copy of a DA Form 2627, dated 5 April 1989; however, the continuation sheet for this DA Form 2627 is not filed in his military service record.  The available DA Form 2627 shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 6 March 1989, willfully disobeying the lawful order of a noncommissioned officer to perform preventive maintenance checks and services (PMCS) on a government vehicle.  This document shows that the applicant requested a closed hearing and a person to speak in his behalf, and that matters in defense, mitigation, and/or extenuation were presented in person by the applicant to the commander.  Subsequent to the closed hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to the grade of E-2; extra duty for 14 days; restriction for 14 days; and forfeiture of $182.00 to be suspended for 90 days, to be automatically remitted if not vacated before 4 July 1989.  This document also shows that the applicant appealed the commander's decision and submitted additional matters in his behalf.  Item 9 (After consideration of all matters presented in appeal, the appeal is:) of the DA Form 2627 shows that the major serving as acting battalion commander placed his initials in the block indicating "Denied."  This item also shows the entry, "The first specification is dropped.  Remaining extra duty and restriction will proceed upon soldier's return from hospital, and report to his commanding unit."

6.  The facts and circumstances pertaining to the applicant’s administrative separation proceedings are not in his Official Military Personnel File (OMPF).  However, the applicant's OMPF does contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 30 August 1989, the date of his discharge for the period under review.  This document contains the separation authority, separation code, reentry code, narrative reason for separation, and character of service pertaining to the applicant's discharge.  This document confirms that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 14-12c, and that the narrative reason for his separation was misconduct.  Based on the authority and reason for his separation, the applicant was assigned a Separation Program Designator (SPD) Code of JKQ and an RE Code of 3.  This document also confirms that the applicant was discharged under other than honorable conditions.  The applicant's DD Form 214 shows that at the time of his discharge he was less than 2 months shy of his 22nd birthday and had completed 2 years, 6 months, and 22 days net active service during the period under review.

7.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

8.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

9.  The applicant’s military service records show that he enlisted in the MIARNG on 31 March 2003 and is currently serving in the rank of sergeant/pay grade E-5 with an expiration of term of service (ETS) of 19 July 2007.


10.  In support of his application, the applicant provides a copy of his DD Form 214; 2 DA Forms 2627, dated 13 February 1989 and 5 April 1989; a Continuation Sheet of a DA Form 2627 for offenses occurring on 26 June 1989; 3 Letters of Recommendation/Reference; State of Minnesota, Department of Military Affairs, MIARNG memorandum, dated 30 December 2005; Department of Military Affairs, MIARNG, Office of the Adjutant, St. Paul, MI memorandum, dated 30 July 2003; and a Request for Waiver to Enlist in the ARNG, dated 24 March 2003.  The 2 DA Forms 2627 document punishment imposed under the UCMJ (as discussed in preceding paragraphs) during the period under review and are filed in the applicant's OMPF.  The Continuation Sheet that the applicant provides shows, in pertinent part, that on or about 26 June 1989 the applicant was derelict in the performance of his duties and willfully disobeyed the lawful order of a superior commissioned officer.  The memorandum from the lieutenant colonel serving as the Acting Directory of Personnel (MIARNG), along with the Request for Waiver, recommend favorable consideration of the applicant's enlistment in the MIARNG, as an exception to policy,  The 3 memoranda that the applicant provides show, in pertinent part, that Senator Paul K______, the colonel serving as his post commander, and the major serving as the regimental logistics officer, offer their endorsement of the applicant's appointment as a commissioned officer.

11.  Army Regulation 635-5-1 (SPD Codes) 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 JKQ as the appropriate code to assign RA enlisted Soldiers who are separated under the provisions of Army Regulation 635-200, paragraph 14-12c, based upon misconduct.  The SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE Code to assign Soldiers separated with an SPD Code of JKQ.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  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.

13.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the U.S. Armed Forces are categorized as prior service personnel.  The applicant's military records show that he qualifies as prior service.)  It states, in pertinent part, that, "Applicants who are thought to have had, or who claim to have had, prior service in any
U.S. Armed Force will not be enlisted in the RA or USAR until their prior service, if any, is verified".

14.  The governing Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct
RE codes will be processed for a waiver at their request, if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document also provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the
RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, U.S. Army Human Resources Command, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the policy for the separation of enlisted personnel and provides, in pertinent part, when deciding retention or separation in a case, the commander will consider the Soldier's entire military record, including past contributions to the Army, assignments, awards and decorations, evaluation ratings, and letters of commendation; memoranda of reprimand or admonition, counseling records, records of non-judicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; and any other matter deemed relevant by the board or the separation authority.

16.  Army Regulation 635-200, Chapter 14, establishes policy and prescribes procedures for separating members because of misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction 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.

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, 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.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

19.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his RE Code should be changed from RE-3 to RE-1.  He also contends, in effect, he did not complete PMCS on the government vehicle because he was ordered to perform the PMCS "the day after having surgery."  The applicant further contends, in effect, that the reason for his separation should be changed and the character of service for his discharge should be upgraded to an honorable discharge because the actions of military authorities were too harsh; he was immature at the time; his administrative discharge was arbitrary, capricious or an abuse of discretion; and he has since completed his bachelor's and master's degrees, is married with 2 children, and serving honorably in the MIARNG.

2.  The evidence of record shows that the RE Code of RE-3 that the applicant received at the time of his discharge was appropriately assigned based on the authority and reason for his separation.  The evidence of record also shows that the applicant requested a waiver to enter the MIARNG on 24 March 2003, a waiver was approved, and that he reentered service in the MIARNG on
31 March 2003.  As a result, the RE-3 code assigned was and remains correct, and was validated by the approving authority when the applicant was granted a waiver to reenter the service in the MIARNG.  Therefore, the applicant is not entitled to correction of his RE Code.

3.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  The evidence of record confirms the applicant twice waived his right to a trial by court-martial and opted for a closed hearing with the commander.  He requested the opportunity to present matters in rebuttal and to have someone speak on his behalf.  The evidence of record also shows that the specification of willfully disobeying the lawful order of a noncommissioned officer to perform PMCS on a government vehicle was dropped.  In addition, the evidence of record shows that, on these two specific occasions, after considering the available evidence, the applicant's commander found him guilty of the alleged misconduct and imposed appropriate punishment.  Therefore, the applicant provides insufficient evidence to support his claim that actions taken by his commander were disproportionately harsh.

4.  By regulation, in deciding retention or separation in a case, the commander will consider the Soldier's entire military record, including in pertinent part, records of non-judicial punishment and any other matter deemed relevant by the separation authority.  The applicant's military service record during the period under review shows he received non-judicial punishment on 3 separate occasions.  In addition, his military service record documents no significant awards, achievements, or accomplishments during the period under review.  Therefore, the applicant provides insufficient evidence to show that the administrative separation action taken by military authorities was arbitrary, capricious or an abuse of discretion.

5.  The evidence of record shows that the applicant was 19 years old when he entered active duty during the period under review and was nearly 22 years of age when he was discharged from the Army.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who also served in the Regular Army during this period of time and successfully completed their military service commitment.

6.  During the period of service under review (i.e., from 28 January 1987 through 30 August 1989), the applicant’s military service records show that his commander imposed non-judicial punishment against him on 3 separate occasions.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

7.  The applicant's post-service achievements and service in the MIARNG were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

8.  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.  Therefore, since there is no evidence of record to show that the applicant's under other than honorable conditions discharge under the provisions of Army Regulation 635-200 was not in accordance with the Army regulatory guidance in effect at the time, there is no basis to change his discharge.

9.  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.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 August 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 August 1992.  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 _  ___PHM_  ___KSJ__  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
AR20070004258
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/10
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890830
DISCHARGE AUTHORITY
AR 635-200, Chapter 14, Paragraph 14-12c
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.