IN THE CASE OF:	

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20090000256 


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 that his general discharge be upgraded to honorable.  He also requests that his narrative reason for separation and reentry (RE) code be changed.

2.  The applicant states, in effect, that he wants to use his Montgomery GI Bill, that he wants to perform Reserve duty, and that he wants to join the New York Police Department after his graduation from college.  He points out that he did not have a bad service record nor was he ever given an Article 15, that he had minor infractions like all young Soldiers, and that he should have been given the chance to correct those since his intent was to be a career Soldier. 

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 6 July 1982.  He enlisted in the Regular Army on 22 June 2001 and trained as an infantryman.  His highest rank attained was specialist. 

2.  On 6 November 2003, contrary to his pleas, the applicant was convicted by a summary court-martial of using marijuana on or about 12 June 2003 and on or about 11 July 2003; and making a false official statement.  He was sentenced to be reduced to E-3 and to forfeit 2/3 pay for one month.  On 18 November 2003, the convening authority approved the sentence.
3.  On 2 February 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).  The unit commander cited that on numerous occasions the applicant failed to report and that he wrongfully used marijuana.

4.  On 3 February 2004, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected to submit a statement on his own behalf; however, a statement was not available.

5.  On 11 February 2004, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

6.  Accordingly, the applicant was discharged on 27 February 2004 with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had served a total of 2 years, 8 months, and 6 days of creditable active service.

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

8.  On 21 November 2008, the Army Discharge Review Board denied the applicant's request for an honorable discharge and narrative reason change.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 (military or civilian 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 chapter.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs 

to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JKQ" is "Misconduct (Serious Offense)" and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

11.  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 (Active and Reserve Components Enlistment Program) 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.

12.  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.

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

14.  The SPD Code/RE Code Cross Reference Table, dated 15 June 2006, shows that when the SPD is "JKQ," then an RE code of 3 will be given.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was almost 19 years of age when he enlisted.  In addition, he served over 2 years of service prior to his misconduct.

2.  A discharge is not upgraded for the purpose of obtaining educational benefits.

3.  The applicant’s record of service included one summary court-martial conviction for using marijuana and making a false official statement.   As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  The applicant's narrative reason for separation and RE code were administratively correct and in conformance with applicable regulations at the time of his separation.

7.  The applicant's current RE code is a waivable code.  Therefore, the applicant may still apply for service in the U.S. Army and request the appropriate waiver.

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)                                         AR20090000256





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ABCMR Record of Proceedings (cont)                                         AR20090000256



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