IN THE CASE OF:	  

		BOARD DATE:	  16 December 2008

		DOCKET NUMBER:  AR20080014072 


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 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states, in effect, that her narrative reason for discharge was too harsh and is prejudicial to her achievements and accomplishments.   She adds that this was an isolated event but her overall service was fully honorable.  She would like to have her narrative reason changed to secretarial authority.

3.  The applicant provided no additional documentation in support of her request. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  American Legion, as counsel for the applicant requests in effect, that the applicant’s narrative reason and reentry (RE) Code be changed.  The narrative reason and RE Code were based on minor and isolated offenses and have adversely affected the applicant's future.

2.  Counsel states, in effect, that following careful review of the applicant’s evidentiary record, they are of the opinion that the issues raised on the applicant's application amply advance her contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, they respectfully rest this case on the evidence of record. 

3.  Counsel provided no additional documentation in support of the applicant’s 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 she enlisted in the Regular Army on 30 October 2001 for a period of 6 years with an established expiration of term of service (ETS) of 29 October 2007.  She was trained in military occupational specialty (MOS) 92G (Food Service Specialist).

3.  On 19 March 2003, the applicant was punished under Article 15, under the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to her appointed place of duty, for disobeying a lawful order from her superior commissioned officer, and for sleeping at her post.  Her punishment consisted of a reduction to pay grade E-2, a forfeiture of pay, and 14 days of restriction and extra duty.

4.  The applicant was promoted to specialist (SPC)/pay grade E-4 on 1 March 2004.

5.  On 4 April 2004, the applicant was apprehended by the Texas State Police for driving while intoxicated (DWI) in El Paso, Texas.  Her driving privileges were suspended until the charges against her were resolved. 

6.  On 5 May 2004, the Commander, Headquarters, US Army Air Defense Artillery Center, a brigadier general, issued an Administrative Memorandum of Reprimand (MOR) to the applicant for refusing to take a lawfully requested chemical breath test.  The MOR was imposed as an administrative action and was not punishment under the Uniform Code of Military Justice (UCMJ).  The 
commander stated that it was his intent to file this memorandum in the applicant’s Official Military Personnel File (OMPF).  The letter was referred to the applicant for her acknowledgement and comment. 

7.  On 18 May 2004, the applicant acknowledged receipt of the reprimand and elected not to make a statement in her own behalf.  

8.  On 24 May 2004, the applicant's commander advised the applicant that he was taking action to separate her 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 (driving under the influence).  

9.  On that same day, the trial counsel reviewed the administrative separation action against the applicant and found the proceedings to be legally sufficient.

10.  On 26 May 2004, the applicant acknowledged receipt of the notification.  After consulting with counsel, the applicant waived hers rights and elected not to submit a statement in her own behalf.

11.  On 27 May 2004, the applicant's commander recommended that she be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, prior to her ETS date, for misconduct-commission of a serious offense and that her service be characterized as general, under honorable conditions.  

12.  The separation authority approved the recommendation for the applicant's discharge on 27 May 2004 and directed that she be issued a general discharge, under honorable conditions.  

13.  On 2 June 2004, the Commander, 32nd Army Air and Missile Command, (the same brigadier general who issued the MOR and who was apparently     dual-hatted) directed that the applicant’s MOR be filed in her OMPF.

14.  On 3 June 2004, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  She was issued a general discharge, under honorable conditions.  She had completed a total of 2 years, 7 months, and 4 days of creditable service.

15.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JKQ," item 27 (Reentry Code) shows the entry "3," and item 28 shows the entry "Misconduct."

16.  On 8 February 2008, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her general discharge.  The ADRB determined that the characterization of service was too harsh and inequitable and voted to change the characterization to honorable.  The ADRB found that the overall length and quality of the applicant's service, to include her combat service, mitigated the discrediting entry in her service record.  The ADRB determined that the reason for discharge was both proper and equitable and voted not to change the reason for discharge.  A new separation document was prepared and forwarded to the applicant without her signature.

17.  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.

18.  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.

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

20.  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."  

21.  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 evidence of record shows that the applicant had a pattern of misconduct. She received one Article 15, under UCMJ, for failing to go to at the time prescribed her appointed place of duty, for disobeying a lawful order from her superior commissioned officer, and for sleeping at her post.  She was also issued an MOR for a DUI offense.

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

3.  The applicant's separation code of "JKQ" and narrative reason for separation are consistent with the basis for her separation.  The RE Code applied to her DD Form 214 is consistent with the separation code applied to her general discharge.  Based on the evidence, there is no indication that an incorrect RE Code, separation code, or narrative reason for her separation was applied to her DD Form 214.  

4.  The separation code of "JKQ" and RE Code of "3" was entered under the appropriate corresponding items on the DD Form 214 and the narrative reason for her discharge was shown to be "Misconduct."

5.  The applicant has provided no evidence to show that the RE code and narrative reason for separation issued to her at the time of discharge was improper or inequitable or should be changed.

6.  The evidence shows that the applicant applied to the ADRB for an upgrade of her discharge.  The ADRB determined that the characterization of service was too harsh and inequitable.  The ADRB voted to change the characterization of her separation to honorable, but voted not to change the reason for her discharge.  

7.  The applicant claims that the narrative reason for discharge was too harsh and is prejudicial to her achievements and accomplishments.  She also claims that this was an isolated event but her overall service was fully honorable.  There 
is no evidence in the available records, and the applicant has provided none, to show her achievements and accomplishments have been prejudiced.  The evidence, however, does show that there was a significant demonstration of misconduct which led to her discharge from the Army.

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080014072



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ABCMR Record of Proceedings (cont)                                         AR20080014072



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