BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090012499 


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 narrative reason for separation be changed to show an expiration of his term of service and that his reentry (RE) code should be changed to RE-1.

2.  The applicant states, in effect, that his discharge was based on one Article 15 in 28 months of service and that he had no other adverse actions.  He states he is trying to rejoin the military but the narrative reason for his discharge and his RE code are preventing him from enlisting.  He states he should be able to continue with his life as a Soldier and that one Article 15 was not sufficient to show a pattern of misconduct. 

3.  The applicant did not provide any supporting documents or evidence with 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 enlisted in the Regular Army on 23 February 2001.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 74D (Nuclear Biological Specialist).  The highest rank/grade he attained during his enlistment was specialist/pay 
grade E-4.  Records show the applicant had two tours of combat service in Afghanistan and Iraq from 15 February 2002 to 30 August 2002 and again from 6 February 2003 to 6 June 2003.

3.  The applicant's service record reveals a disciplinary history of multiple instances of disrespect and willfully disobeying lawful orders, failure to report to appointed place of duty on numerous occasions, lack of compliance with military regulations and established general orders, substandard personal hygiene, substandard military appearance, and substandard duty performance.  These transgressions were documented on DA Forms 4856 (General Counseling Form) between 26 June 2003 (20 days after his second return from Iraq) and his date of separation.  The applicant authenticated each DA Form 4856 in his own hand often disagreeing with the counselor and providing rebuttal statements.  On 9 October 2003, he stated that he was absent from his place of duty because he was with the chaplain.  He also requested a mental evaluation. 

4.  The applicant’s military personnel records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 24 October 2003 for failure to go on two separate dates. 

5.  On 25 November 2003, the applicant underwent a mental status evaluation that shows he was alert, fully oriented and cooperative throughout the evaluation. His mood and affect were unremarkable.  His thought processes were clear and organized.  His concentration and memory did not appear impaired.  He did not appear to be in danger of hurting himself or others and he denied experiencing any significant psychiatric symptoms.  There was no evidence of any major psychiatric disorder.  The applicant was medically cleared by the post Behavioral Health Clinic for any administrative action or training as deemed appropriate by his chain of command.

6.  On 6 January 2004, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.

7.  On 7 January 2004, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel, on 13 January 2004, and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant waived submitting statements or evidence in his own defense.

8.  On 27 January 2004, the separation authority waived further rehabilitative efforts, directed the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of pattern of misconduct, and directed issuance of a general discharge.  

9.  Accordingly, the applicant was discharged on 27 February 2004.  The 
DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general discharge).  This form also shows he completed a total of 3 years and 25 days of creditable active military service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 27 February 2006, the ADRB upgraded the applicant's discharge to honorable based on his two combat service tours and his overall length and quality of service.  The ADRB did not change the reason for his discharge or change his RE code.  Subsequently, a new DD Form 214 was prepared that shows his characterization of service as honorable.  Item 26 (Separation Code) shows the entry "JKA," item 27 (Reentry Code) shows the entry "3," and item 28 (Narrative Reason for Separation) shows the entry "Misconduct."

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  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 the regulation.

12.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program) establishes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-6 included a list of the Regular Army RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waiverable. They are ineligible unless a waiver is granted. 

13.  The Separation Program Designator Code (SPD)/RE Code Cross-Reference Table, dated October 2000, shows that the appropriate RE code for the SPD code of "JKA" is RE-3.

DISCUSSION AND CONCLUSIONS:
1.  The applicant contends that the narrative reason for his discharge should be changed to show expiration of his term of service and that his RE code should be changed to RE-1.
   
2.  While it is true that the record shows that the applicant was only given nonjudicial punishment once, he was counseled on numerous occasions for a lack of compliance with established Army regulations, substandard behavior, lack of compliance with acceptable personal hygiene and appearance, and failure to go.  There is no prohibition in Army regulations against using documented misconduct as the basis for separation if no judicial or nonjudicial punishment is given for the misconduct.

3.  As such, the applicant's documented misconduct appropriately formed the basis for discharge due to a pattern of misconduct and there is no reason for changing it.

4.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct" and the appropriate RE code associated with this discharge is RE-3.
5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, 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.  Therefore, he is not entitled to relief.

6.  While the applicant’s desire to enlist is commendable, the Board does not change a properly constituted military record to establish eligibility for a program or benefit.

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)                                         AR20090012499



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ABCMR Record of Proceedings (cont)                                         AR20090012499



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