IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090013161 


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 reentry eligibility (RE) code 3 be upgraded to a higher RE code.

2.  The applicant states, in effect, that his discharge was very abrupt and that no offer of contestation or rehabilitation was given to him during the separation process.  He states that he was assumed guilty by word of his superiors with no offer of education or rehabilitation or appeal through his chain of command.  He states that when he was accused of larceny, his rights were not read to him and he was not brought up on charges.

3.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's military records be corrected in association with a claim for benefits administered by the Department of Veterans Affairs.

2.  Counsel states that all appropriate developments, to include conducting any necessary Department of Veterans Affairs examination(s), be completed as soon as possible.

3.  Counsel provides copies of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and separation packet in support of the 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 15 May 2003.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 25U (Signal Support Systems Specialist).  The highest rank/grade he attained during his enlistment was private/pay grade E-2.

3.  The applicant's service record reveals a disciplinary history of multiple instances of disrespect and willfully disobeying lawful orders, lying to superiors, failure to report to his 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 22 April 2004 and 6 June 2005.  The applicant authenticated each DA Form 4856 in his own hand, agreeing with the counselor's factual statements.

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 two separate occasions (21 May 2004 and 15 March 2005) for stealing military property and for failing to obey a lawful general order.

5.  On 3 June 2005, the division psychologist evaluated the applicant.  He acknowledged on DA Form 3822 (Report of Mental Status Evaluation) that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  On 6 June 2005, the applicant received a formal counseling statement that shows his chain of command recommended separating him from the U.S. Army prior to his expiration of his term of service for his repetitive patterns of misconduct.

7.  On 6 June 2005, 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.

8.  On 9 June 2005, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel 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.

9.  On 10 June 2005, the separation authority waived further rehabilitative efforts and directed the applicant be discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of a pattern of misconduct and directed issuance of a general discharge.  

10.  Accordingly, the applicant was discharged on 17 June 2005.  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 2 years, 1 month, and 3 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JKA" and item 27 (Reentry Code) shows the entry "3."

11.  Army Regulation 27-10 (Military Justice) provides, in pertinent part, for the implementation of nonjudicial punishment by a unit commander.  Use of nonjudicial punishment is proper in all cases involving minor offences in which nonpunitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to further military efficiency by disposing of minor offenses in a manner required less time and personnel than a trial by court-martial.  The imposing commander will ensure that the Soldier is notified of his intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will be told the maximum punishment that can be imposed.  He will be provided a copy of the document and informed of his rights, which include the right to remain silent, representation by counsel, demand trial, call witnesses, present evidence, request a spokesman, request an open hearing, and to examine available evidence.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).

13.  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.

14.  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 terms 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 waivable.  They are ineligible unless a waiver is granted.

15.  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 his RE code should be upgraded to a more favorable code.

2.  The evidence of record shows that the applicant's assigned RE code was based on regulatory guidance because he was separated under the provisions of chapter 14 of Army Regulation 635-200 due to a pattern of misconduct.  The underlying reason for his discharge was his own patterns of misconduct to include a lack of compliance with established Army regulations, and standards for behavior, appearance, and timeliness.  The only valid narrative reason for separation permitted under that paragraph is "pattern of misconduct" and the appropriate RE code associated with this discharge is RE-3.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant contends that the separation process happened abruptly, yet the evidence of record shows he was consistently counseled by his superiors while in advanced individual training and at his unit of assignment.  The evidence of record shows he consistently agreed with the counselor, authenticating each counseling statement and provided no rebuttal statements.

4.  The contention that he was not read his rights during the imposition of punishment under Article 15 of the UCMJ for the theft of government property (larceny) is without merit.  The evidence shows he consulted with counsel and did not demand trial by court-martial, that the hearing was closed, that a person to speak on his behalf was not requested, and that he did present matters in his defense.

5.  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.

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)                                         AR20090013161



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ABCMR Record of Proceedings (cont)                                         AR20090013161



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