IN THE CASE OF:	  

		BOARD DATE:	        21 OCTOBER 2008

		DOCKET NUMBER:  AR20080008736 


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 separation code and reentry eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant essentially states that he was removed from the service not because of his actions, but the actions of his now ex-wife.  He also states that he arrived at Fort Polk, Louisiana around March 1987, and was joined by his wife and two children in May or June 1987, but that after her arrival, she proceeded to overdraw their checking account and depleted their savings account while continuing to write checks to utility companies.  He also states that he took the checkbook away from her, but that she ordered a new one.  He further states, in effect, that after being counseled by his chain of command, he tried to make arrangements to pay his debts, but with little money and no other resources to draw from, he was unable to do so, and that he then made a request to send his wife and children back to Michigan.  He continued by stating that he was again counseled and told he would be reduced in rank and removed from the service if he could not make immediate and full restitution to all creditors, and because he did not have the resources to do so, he was reduced in rank and removed from the service in March 1988.  He also states that he was a good Soldier, and that this made his removal all the more disappointing. 

3.  The applicant provides his DD Form 214; a self-authored statement, dated 
6 May 2008; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 6 May 2008 in support of this 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's military records show that he enlisted in the Regular Army on 4 October 1983.  He completed initial entry training and was awarded military occupational specialty 51N (Water Treatment Specialist).  He departed for a tour in Germany on 2 February 1984, with his dependents arriving overseas in April 1984.  He returned to the continental United States on 14 April 1987, and was reassigned to Fort Polk what would be his final permanent duty station.

3.  On 10 September 1987, the applicant's check cashing privileges were suspended for 1 year after a second recorded offense for dishonored checks.

4.  On 14 September 1987, the applicant's commander was notified that the applicant had written a dishonored check in the amount of $350.00.

5.  In a letter, dated 14 October 1987, the applicant's chain of command was informed that the applicant wrote a bad check to a gentleman that the applicant had agreed to pay for the transportation of his automobile.  The amount owed by the applicant was $328.00.

6.  In a letter, dated 29 December 1987, the applicant's first sergeant was informed that the applicant owed $553.85 to his telephone company, which had been outstanding since 9 October 1987.

7.  On 5 January 1988, the applicant's commander was notified that the applicant had written a dishonored check in the amount of $300.00.  Attached to the letter was the dishonored check which essentially shows that the applicant personally signed this check.


8.  On 8 January 1988, the applicant was counseled for writing bad checks.  This counseling statement essentially shows that he was previously counseled on 
28 October 1987 for the same matter, and was told that action under the Uniform Code of Military Justice (UCMJ) would be taken if he continued to act in the same manner.  He was also advised that continued misconduct of this nature may result in his elimination under the provisions of Army Regulation 635-200 (Enlisted Personnel) with the issuance of an honorable, general, or other than honorable conditions discharge.

9.  On 13 January 1988, the applicant's commander was notified that the applicant had written a dishonored check in the amount of $300.00.  Attached to the letter was the dishonored check which essentially shows that the applicant personally signed this check.

10.  On 16 February 1988, a mental status evaluation was conducted on the applicant, and he was psychiatrically cleared for any administrative action deemed appropriate by his command.

11.  On 18 February 1988, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for wrongfully and unlawfully drawing two checks, each for $300.00, with the intent to defraud and for the procurement of lawful currency, then knowing that he did not or would not have sufficient funds to cover those checks.  His punishment consisted of reduction in rank and pay grade from specialist four (SP4)/E-4 to private (PV1)/E-1, forfeiture of $335.00 pay per month for 2 months (suspended for 60 days and to be automatically remitted if not vacated before 18 April 1988), 30 days of extra duty, and 30 days of restriction.

12.  Additionally, on 18 February 1988, the applicant's commanding officer essentially notified him that he was initiating action under the provisions of Paragraph 14-12b (Pattern of Misconduct), Chapter 14 (Separation for Misconduct), Army Regulation 635-200 for knowingly and willfully repeatedly writing worthless checks.  He indicated that the applicant had been counseled to no avail and was constantly involved in financial problems.  He was also advised of his rights, which including consulting with counsel, and submitting statements in his own behalf.

13.  On 19 February 1988, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for misconduct under the provisions of Chapter 14, Army Regulation 635-200 and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected not to submit 
statements in his own behalf.  He also acknowledged that he understood that he could expect to encounter prejudice in civilian life if a general discharge was issued to him. 

14.  On 24 March 1988, the proper separation authority approved the applicant's discharge under the provisions of Chapter 14, Army Regulation 635-200, and directed that he be issued a General Discharge Certificate.  On 31 March 1988, the applicant was discharged accordingly.  Item 24 (Character of Service) of his DD Form 214 has an entry of “Under Honorable Conditions,” and Item 25 (Separation Authority) of this document shows that the authority for his discharge was Chapter 14, Army Regulation 635-200.  Item 26 (Separation Code) of this document has an entry of "JKM (JKE)," and item 27 (Reenlistment Code) has an entry of "3, 3C."  Item 28 (Narrative Reason for Separation) of this document has an entry of "Misconduct."

15.  The applicant essentially stated that he was removed from the service not because of his actions, but the actions of his now ex-wife.  He also stated that he arrived at Fort Polk around March 1987, and was joined by his wife and two children in May or June 1987, but that after her arrival, she proceeded to overdraw their checking account and depleted their savings account while continuing to write checks to utility companies.  He also stated that he took the checkbook away from her, but that she ordered a new one.  He further stated, in effect, that after being counseled by his chain of command, he tried to make arrangements to pay his debts, but with little money and no other resources to draw from, he was unable to do so, and that he then made a request to send his wife and children back to Michigan.  He continued by stating that he was again counseled and told he would be reduced in rank and removed from the service if he could not make immediate and full restitution to all creditors, and because he did not have the resources to do so, he was reduced in rank and removed from the service in March 1988.  He also stated that he was a good Soldier, and that this made his removal all the more disappointing. 

16.  Army Regulation 635-5-1 (Separation Program Designator [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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table) establishes RE Codes to be assigned for each SPD.  

17.  SPD codes of "JKM (JKE)" apply to persons discharged under the provisions of Paragraph 14-12b, Army Regulation 635-200 for misconduct due to a pattern of misconduct.  The SPD code of "JKE" in parentheses on the applicant's 
DD Form 214 is a transmitter code.  Army Regulation 635-5-1, in effect at the time, provided that where a transmitter code and an SPD code are listed, both codes will be entered in item 26 of the DD Form 214.  When there are two codes listed in item 26 of the DD Form 214, only the transmitter code will be used by Standard Installation/Division Personnel System (SIDPERS) personnel.  The SPD/RE Code Cross Reference Table shows that an RE codes of 3 and 3C are the applicable RE codes assigned to individuals discharged for this reason.  The applicant’s RE codes of 3 and 3C indicate that he was separated from his last period of service with a disqualification which is waivable.

18.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the United States 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, including Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment, if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

19.  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.  This 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 that his separation code and RE code shown on his DD Form 214 should be changed.

2.  The applicant's contention that the actions of his ex-wife were the cause of his discharge was considered.   However, the applicant provided no evidence which shows that his ex-wife was singularly responsible for their financial situation.  Additionally, the applicant's military records contained evidence which shows that the applicant personally cashed two dishonorable checks in December 1987 totaling $600.00.  As a result, it appears that the applicant was at least as guilty as his ex-wife of financial irresponsibility.


3.  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.

4.  The applicant's separation and RE codes are based on his reason for discharge and cannot be changed unless his narrative reason for discharge is changed.  His narrative reason for discharge was based on his discharge under the provisions of Army Regulation 635-200, Chapter 14.  As a result, there is no basis for changing his separation or RE codes.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.



      _______XXX____________
               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)                                         AR20080008736



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ABCMR Record of Proceedings (cont)                                         AR20080008736



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