RECORD OF PROCEEDINGS


	IN THE CASE OF:    	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070005056 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones II

Member

Ms. Carmen Duncan

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 her Separation Program Designator (SPD) Code, Reentry (RE) Code 3, and the Narrative Reason for Separation shown on her Certificate of Release or Discharge from Active Duty (DD Form 214) be changed so that she may utilize her veterans education benefits.  She also requests that her record of two nonjudicial punishments (NJP’s) be purged because they are negatively affecting her ability to obtain and retain employment.

2.  The applicant states, in effect, that since these NJP’s are only for military use and do not pertain to civilian law, they should be removed from her record.  She further states that she has been dismissed from employment because of this unfavorable information.  She states that the sodomy charge was inaccurate, contending that she was drugged and engaged in sexual activity with another Soldier but could not remember anything.  She states that she was guilty of using marijuana but has since become a more mature person and no longer uses drugs.  She further states that she completed her entire 3 year term of military service and does not wish to continue to suffer for sentences she has already served.

3.  The applicant provides copies of her DD Forms 214, and her Federal Bureau of Investigation (FBI) Criminal Background check.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 31 March 2000, the applicant enlisted in the Regular Army for 3 years.  She completed her initial training and was awarded military occupational specialty 45B1O (Small Arms/Artillery Repairer).

3.  The applicant’s records of the NJP’s are not available for review.
4.  The FBI Criminal Background Check provided by the applicant shows that on 3 August 2000, the applicant accepted NJP under the provisions of Article 
15, Uniform Code of Military Justice, for sodomy.  The punishment included a forfeiture of $502.00 pay per month for 2 months and 45 days extra duty and restriction.  

5.  The FBI Criminal Background Check also shows that on 22 April 2003, the applicant accepted NJP for wrongful use of marijuana.  The punishment included reduction to private, pay grade E2, forfeiture of $100.00 pay per month for 
2 months, and 45 days extra duty.

6.  On 27 June 2003, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct.  [The administrative discharge packet is not available for review.]  Accordingly, she was given an SPD Code of JKK and an RE Code 3.  Her character of service was under honorable conditions.  

7.  On 25 November 2005, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of her discharge.  The ADRB noted in its case report that the applicant had accepted two field grade NJP’s; one in 2001 for wrongful use of LSD (lysergic acid diethylamide); and another one in 2003 for wrongful use of marijuana. [There is no indication that the ADRB knew of the applicant’s NJP for sodomy.]  The ADRB analyst’s assessment stated that the evidence of record showed that on 28 May 2003, the applicant’s commander notified her that she was being separated from the military service under the provisions of Army Regulation 635-200, chapter 14, for misconduct, by reason of misconduct-commission of a serious offense, with a general, under honorable conditions discharge.  The commander further indicated that he was initiating separation proceedings based on the applicant’s wrongful use of marijuana and LSD.  The applicant was advised of her legal rights.  The applicant consulted with counsel, was advised of the impact of the discharge action, and did not submit a statement in her own behalf.  The commander subsequently recommended waiver of further rehabilitative efforts and separation from the service.  The appropriate authority approved the recommendation and directed that the applicant be discharged with a characterization of general, under honorable conditions.  The ADRB carefully examined the applicant’s record of service, giving full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The ADRB found that the length and quality of the applicant’s service mitigated her misconduct.  In view of the foregoing, the ADRB determined that her characterization of service was inequitable, and voted to change it to fully honorable.  The ADRB also determined that the narrative reason was both proper and equitable and voted not to change it.
   
8.  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.

9.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) 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 RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

10.  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. The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, for misconduct. 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 for this reason.

11.  Department of Defense Directive Number 7730.46, dated October 15, 1996, established the Defense Incident Based Reporting System (DIBRS).  DIBRS was created to bring the DOD into compliance with the Uniform Federal Crime Reporting Act of 1988, Victim's Rights and Restitution Acts of 1990 and 1994, and the Brady Handgun Act.  It is the DOD central repository for consolidation and reporting of incidents to the National Incident-Based Reporting System (NIBRS) and the Federal Bureau of Investigation (FBI), to standardize data so that all services and components can report and share common information, and to standardize the reporting framework so that the central repository can expect the same information from all components.  


12.  Requests for corrections to or deletion of records maintained by or compiled by the DIBRS should be submitted as a Privacy Act Amendment request to the Director, US Army Crime Records Center, ATTN: CICR-FP, 6010 6th Street, Fort Belvoir, Virginia 22060-5585.  The requestor must provide sufficient information that can disprove that the incident occurred as reported.  If successful all records will be deleted from all systems including the DIBRS.

DISCUSSION AND CONCLUSIONS:

1.   The ADRB reviewed the applicant's discharge and made a deliberate determination that the characterization was inequitable.  At the same time, it found that the narrative reason and RE code 3 was proper and equitable.

2.  The SPD and RE Code 3, establishing her ineligibility for enlistment/reenlistment without a waiver were correctly entered on her DD Form 214 in accordance with governing regulations.  There is no evidence of error or injustice.

3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 3.  

4.  There is no evidence showing that the information contained in the FBI Criminal Background file is inappropriate or incorrect.  However, should the applicant have sufficient evidence to disprove the contents of the file, she may submit her request in accordance with paragraph 12 above.

5.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS ___  __FCJ __  _CD ___  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.





_      Linda  D . Simmons___
          CHAIRPERSON




INDEX

CASE ID
AR20070005056
SUFFIX

RECON
 
DATE BOARDED
20070906  
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126.0400
2.
110.0200
3.

4.

5.

6.