IN THE CASE OF:	  

		BOARD DATE:	       24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080007734 


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 his discharge under other than honorable conditions be changed to an uncharacterized discharge.  He also requests that his reentry (RE) code be changed so he can reenlist.  

2.  The applicant states that when he committed the offenses for which he was discharged he was young and very dumb and that today he realizes the seriousness of his actions and he is deeply regretful.  He wants to rejoin the Armed Forces and serve his country proudly and properly.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his discharge packet in support of his application. 

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.  The applicant was born on 6 September 1986.  He enlisted in the Regular Army on 21 March 2004 for a period of 4 years.  He successfully completed basic training and advanced individual training in military occupational specialty 13B (cannon crewmember).  

3.  On 12 October 2004, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 22 September 2004 to 
27 September 2004, using marijuana, and using cocaine.  His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended), extra duty, and restriction.  On 15 October 2004, the suspended portion of the sentence was vacated.

4.  On 4 November 2004, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  On 4 November 2004, he consulted with counsel and waived his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he further acknowledged that as the result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his own behalf.        

5.  The unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He based his recommendation for separation on the applicant’s nonjudicial punishment.

6.  On 29 November 2004, the separation authority approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  Accordingly, the applicant was discharged on 8 December 2004 under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had served 8 months and 18 days of creditable active service with 5 days of lost time due to AWOL.

8.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2).”  Item 
26 (Separation Code) on his DD Form 214 shows the entry, "JKK."  Item 
27 (Reentry Code) on his DD Form 214 shows the entry, "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCONDUCT.”

9.  On 3 November 2006, the Army Discharge Review Board denied the applicant’s request for an uncharacterized discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

11.  Army Regulation 635-200 states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status.  Entry level status is defined as the first 180 days of continuous active duty.  

12.  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 “JKK” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).  

13.  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.

14.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

15.  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.

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

17.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 31 March 2003, shows that when the SPD [Separation Program Designator] is "JKK" then an RE code of 4 will be given.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training and advanced individual training.      

2.  Evidence of record shows the applicant enlisted in the Regular Army on 
21 March 2004.  Evidence of record also shows that his discharge proceedings were initiated on 4 November 2004, over seven months later.  Since the applicant was not in an entry level status when his discharge proceedings were initiated, and in accordance with the governing regulation, there is no basis for granting his request that his discharge be changed to an uncharacterized discharge.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20080007734





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ABCMR Record of Proceedings (cont)                                         AR20080007734



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