IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080005382 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that item 27 (Reentry Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the entry, “NA [Not Applicable]” and that the entry in item 28 (Narrative Reason for Separation) on his DD Form 214 be removed.  He requests that the reenlistment code and authority and reason on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 
13 December 2003 be corrected to match his DD Form 214.  He also requests that his DD Form 214 and NGB Form 22 for the period ending 13 December 2003 be corrected to show award of the Army Commendation Medal.    

2.  The applicant states, in effect, that the chapter 14 he was charged with at Fort Stewart, Georgia was for an incident that happened in 1988 prior to entering the New York Army National Guard.  He contends that this incident had nothing to do with his service in the New York Army National Guard.  He states that he was a stellar Soldier and was commended by his command during his tour while serving at Fort Stewart, Georgia and it should show on his DD Form 214.  He also states that he was recently commended with an Army Commendation Medal by the Secretary of the Army for his heroic actions as a military first responder on 11 September 2001.  

3.  The applicant provides a “voided” DD Form 214; a memorandum for correction of DD Form 214; discharge documents; a NGB Form 22 for the period ending 13 December 2003; letters of appreciation; a corrected DD Form 214; a waiver; discharge orders; an Army National Guard Annual Statement; Megan’s Law legal papers; and orders for the Army Achievement Medal and the Army Commendation Medal. 

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.  Having prior inactive service, the applicant enlisted in the New York Army National Guard on 28 February 1996.  On 2 February 2003, he was ordered to active duty in support of Operations Noble Eagle and Enduring Freedom.

3.  The applicant’s Official Military Personnel File on the Interactive Personnel Electronic Records Management System (iPERMS) contains an undated, unapproved discharge packet for separation under the provisions of Army Regulation 635-200, chapter, paragraph 14-12c, for commission of a serious offense.  

4.  The official facts and circumstances surrounding the applicant’s discharge from active duty are not contained in the available records.  However, the applicant provided a memorandum, dated 21 October 2003, which shows he was advised by counsel of a proposed action to separate him under the provisions of Army Regulation 635-200, chapter 14-12c, for commission of a serious offense.  He waived his rights and elected not to submit a statement on his own behalf.  His DD Form 214 shows that he was discharged on 13 December 2003 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct.  

5.  The applicant’s DD Form 214 shows the Army Achievement Medal (5th Award), the National Defense Service Medal, the Armed Forces Reserve Medal with “M” Device, the Army Service Ribbon, the Army Lapel Button, and the Global War on Terrorism Service Medal as authorized awards.  Item 

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

6.  The official facts and circumstances surrounding the applicant’s discharge from the Army National Guard are not contained in the available records.  However, the applicant’s NGB Form 22 for the period ending 13 December 2003 shows that he was discharged from the Army National Guard and as a Reserve of the Army with a general discharge under the provisions of National Guard Regulation 600-200, paragraph 8-26e(1), for conviction by civil court.  

7.  The applicant’s NGB Form 22 shows the Army Service Ribbon, the Army Achievement Medal (5th Award), the New York State Meritorious Service Medal, the National Defense Service Medal, the Armed Forces Reserve Medal with “M” Device, the Army Service Ribbon, the Army Lapel Button, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar as authorized awards.  Item 23 (Authority and Reason) on his NGB Form 22 shows the entry, “NGR 600-200, 8-26e(1) Conviction by Civil Court.”  Item 26 (Reenlistement (sic) Eligibility) on his NGB Form 22 shows the entry, “RE-3.”   

8.  Headquarters, US Army Human Resources Command Permanent Orders 236-34, dated 24 August 2007, show the applicant received the Army Commendation Medal for meritorious achievement during the period 
11 September 2001 to 14 September 2001.

9.  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 “JKQ” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

10.  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.

11.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

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

13.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given an SPD [Separation Program Designator] of "JKQ” will be given an RE code of 3.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were noted.  However, in the absence of evidence to the contrary, it must be presumed that the applicant’s separation from active duty and the Army National Guard were administratively correct and in conformance with applicable regulations.  His contention that he was separated based upon an incident that occurred prior to his 1996 enlistment in the Army National Guard cannot be properly considered without his entire discharge packet.  

2.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

3.  The applicant’s narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  

4.  Orders show the applicant received the Army Commendation Medal; therefore, his DD Form 214 and NGB Form 22 for the period ending 
13 December 2003 should be corrected to show this medal. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xx______  __xx______  _xx__  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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by adding the Army Commendation Medal to his DD Form 214 and NGB Form 22 for the period ending 13 December 2003.

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 amendment of the RE code 
and narrative reason for separation on his DD Form 214 and NGB Form 22 for the period ending 13 December 2003.



      ________xxxx___________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005382



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ABCMR Record of Proceedings (cont)                                         AR20080005382



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