RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  8 January 2008
	DOCKET NUMBER:  AR20070010575 


	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:


Mr. Frank C. Jones II

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show his foreign service; to upgrade his discharge to honorable; and to change his reentry (RE) code 3 to 1.

2.  The applicant states, in effect, that he served his country with honor while overseas in Desert Shield/Storm but his DD Form 214 does not show this service.  He also states that he has been punished by health issues, the government, the law, his own conscience, and by God.  He further states that he has embraced his punishment like a man, a patriot, and a child of God.  He wants the opportunity to rejoin the team to help protect his country.  Being a Soldier was the best thing he has ever done and he was good at doing it.  

3.  The applicant provides a copy of a memorandum stating his overseas service, an extract of his personnel record, a Certificate of Accomplishment, a Certificate of Achievement, and a letter from the Alabama State Trooper Association thanking him for his interest and support for the association.

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 26 July 1990, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).

3.  The applicant provided a Memorandum for Record, dated 8 April 1991, from the Adjutant, 4th Battalion, 1st Aviation Regiment.  It states that the applicant served in Southwest Asia in support of Desert Shield/Storm during the period from 23 January to 22 April 1991 and had been awarded the Army Commendation Medal.  
4.  On 1 July 1991, the applicant was promoted to the rank of specialist, pay grade E-4.

5.  On 22 October 1991, the applicant was arrested by civilian police authorities for selling crack cocaine to an undercover police officer.  

6.  On 10 January 1992, the applicant was reduced in rank from specialist to private first class, pay grade E-3.  The available records do not contain any documentation pertaining to the reason he was reduced.

7.  On 22 January 1992, a medical examination found him to be qualified for separation with a physical profile of 111111.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

8.  On 12 February 1992, the applicant’s commander advised him that he was initiating action to separate him for misconduct, specifically the unlawful distribution of a controlled substance.  The commander also advised the applicant that he was going to recommend that he receive a discharge under honorable conditions, but that the intermediate commander and the separation authority were not bound by his recommendation as to characterization of service.

9.  On 12 February 1992, the applicant consulted with counsel concerning his rights and submitted a request for a conditional waiver of his case by an administrative separation board, contingent upon his receiving a characterization of service or description of separation no less favorable than under honorable conditions.  

10.  On 12 February 1992, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.   

11.  On 12 February 1992, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.


12.  Accordingly, on 21 February 1992, the applicant was discharged under honorable conditions.  Item 12c (Net Active Service This Period) of his DD Form 214 shows that he had completed 1 year, 6 months, and 26 days of creditable active service.  Item 12f (Foreign Service) indicates that he did not complete any foreign service.  He was given a Separation Program Designator (SPD) code of JKK and an RE code 3.  His character of service was under honorable conditions.  

13.  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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that, for item 12f, from the Enlisted Record Brief (ERB)/Officer Record Brief, enter the total amount of foreign service completed during the period covered in item 12c.

15.  Army Regulation 635-5 also states that, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" will be entered in item 18 (Remarks).

16.  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, by reason of misconduct.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 establishes RE code 4 as the proper RE code to assign to Soldiers for this reason.

17.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18.  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.

19.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

20.  Under the UCMJ, the maximum punishment allowed for wrongful distribution of cocaine is a punitive discharge and confinement for 15 years.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record clearly shows that the applicant served in Southwest Asia in support of Operation Desert Shield/Storm during the period from 23 January to 22 April 1991, for a total of 3 months.  Therefore, his DD Form 214 should be corrected to show this service. 

2.  The evidence of record clearly shows that the applicant committed a serious offense for which a discharge under other than honorable conditions was authorized. However, the separation authority elected to discharge him under honorable conditions. 

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.  

5.  The RE code establishing his eligibility or ineligibility for enlistment or reenlistment with or without a waiver, was incorrectly entered on his separation document in accordance with governing regulations.  SPD JKK requires an RE code 4; however, an RE code 3 was entered on his DD Form 214.  In keeping with the Board's policy of not adding further harm to an applicant, no change will be made on this issue.
6.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose.

7.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge or to change his RE code.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_FCJ ___  __MJF __  __LMD __  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  showing in Item 12f (Foreign Service) of his DD Form 214, his foreign service as 2 months; and

	b.  showing in item 18 (Remarks) of his DD Form 214, “SERVICE IN SOUTHWEST ASIA FROM 910123 – 910422.”  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his discharge or change of his RE code.




___     Frank C. Jones II _____
          CHAIRPERSON




INDEX

CASE ID
AR20070010575
SUFFIX

RECON
 
DATE BOARDED
20080108 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
110
2.
120
3.
144
4.

5.

6.