IN THE CASE OF:	

		BOARD DATE:	  12 November 2008 

		DOCKET NUMBER:  AR20080013364 


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 character of service, under honorable conditions (general); that his separation code of "JQK"; and that his reentry eligibility (RE) Code of "RE 3" be corrected and that his pay grade of E-1 be changed to pay grade E-4 on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

2.  The applicant states, in effect, that 17 years ago he received a DWI (driving while intoxicated), which was the reason for his discharge.  He has worked for Government institutions that perform 10-year history checks.  He has been a model individual, active in his church and community mentoring troubled youth.  “He would like his DD Form 214 to stand behind him when advising young individuals about military career options.”  He is also considering joining the Reserves to obtain rank and possibly return to active duty.  Additionally, at the time of his discharge he was issued the Army Good Conduct Medal.  

3.  The applicant provides no additional documentation in support of his request. 

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 record shows he enlisted in the Regular Army on 18 March 1988 for 4 years with an established expiration term of service (ETS) date of 
17 March 1982, with prior service, in pay grade E-2.  He was trained in military occupational specialty (MOS) 63W, Wheel Vehicle Repairer.  He was promoted to pay grade E-4 on 1 March 1990.

3.  The applicant's record contains a copy of Headquarters, Fort Carson Permanent Orders Number 032-22 which shows that he was awarded the Good Conduct Medal, 1st award, for the period 18 March 1988 through 17 March 1991.

4.  On 11 June 1991, the applicant was punished under Article 15, under the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.  His punishment consisted of reduction to pay grade E-3 (suspended), a forfeiture of pay, and 14 days of extra duty.

5.  The applicant was barred from reenlistment on 24 July 1991.  Item 10 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) of his DA Form 4126-R (Bar to Reenlistment Certificate) indicates the applicant was counseled for failure to secure property.  He was also counseled for being absent from formation; for being absent from his appointed place of duty; for poor duty performance; and for apprehension for driving under the influence (DUI).  He indicated that he would not appeal the bar to reenlistment.

6.  On 30 July 1991, the applicant was punished under Article 15, under UCMJ, for DUI.  His punishment consisted of a reduction to pay grade E-1 and 45 days of extra duty.

7.  On 20 August 1991, the applicant's commander advised the applicant that he was taking action to separate him under the provisions of Army Regulation 
635-200, paragraph 14-12c for misconduct, commission of a serious offense.  The commander cited that his recommendation was based on the applicant’s DUI and his bar to reenlistment.  

8.  On 20 August 1991, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c from the service prior to his ETS date, for misconduct-commission of a serious offense.  
9.  After consulting with counsel on 21 August 1991, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than under honorable conditions (general discharge).  He elected not to submit a statement in his own behalf. 

10.  The separation authority approved the recommendation for the applicant's discharge on 22 August 1991 and directed that he be issued a general discharge, under honorable conditions.  

11.  On 25 September 1991, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-commission of a serious offense.  He was issued a general discharge, under honorable conditions.  He had completed a total of 3 years, 10 months and 7 days of creditable service.

12.  Item 4a of his DD Form 214 shows the entry "PVT," item 4b shows the entry "E-1," and item 12h (Effective Date of Pay Grade) shows the entry "91 07 30" (30 July 1991).

13.  Item 24 (Character of Service) of the applicant's DD Form 214 shows the entry "Under Honorable Conditions (General)," item 26 (Separation Code) shows the entry "JKQ," and item 27 (Reentry Code) shows the entry RE-3. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12c 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this paragraph. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

15.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.

16.  RE 3 applies to persons not fully qualified for continued Army service, but the disqualification is waivable.

17.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons.  This regulation shows that the SPD of "JKQ," as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for separation is "misconduct, commission of a serious offense and the authority for discharge is "Army Regulation 635-200, paragraph 14-12c."  

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This table shows the SPD code of "JKQ" is appropriate for Soldiers separated due to misconduct commission of a serious offense.  This table also shows that the SPD code of “JKQ” has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct-commission of a serious offense was accomplished in compliance with applicable regulations.  

2.  The applicant was reduced to pay grade E-1 on 30 July 1991 as a result of his DUI.  He has failed to show that he was promoted or advanced to the rank and pay grade of SPC/E-4 prior to his discharge on 25 September 1991.  Therefore, there is insufficient evidence to correct item 4a or 4b of his DD Form 214 to show the entry "SPC and E-4," as requested.

3.  The applicant's separation code of "JKQ" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of his 
RE Code. 

4.  The applicant has provided no evidence to show that the separation code or RE Code issued to him at the time of discharge was improper or inequitable or should be changed.

5.  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.

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.




      _______ _x   _______   ___
               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)                                         AR20080013364



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ABCMR Record of Proceedings (cont)                                         AR20080013364



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