BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090014310 


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 an upgrade of his general, under honorable conditions discharge to fully honorable and correction of his Reentry (RE) Code from RE-3 to a more favorable code.  He also requests an entry that shows he was subjected to small radiation.

2.  The applicant states that he feels he was given a general discharge unfairly as he was a good Soldier.  He was on top of his class during advanced individual training and received three awards of the Army Achievement Medal.  He was late to formation in one instance and believes there were underlying issues that caused him to be late.  He also states that he was young and did not realize the small mistakes he made in the past would cause him a hardship in the future.  The character of his service caused him to be misinformed about his education benefits.  Additionally, his RE Code makes him ineligible to reenlist and did not realize that the RE code prevented him from doing so.  He concludes that he was subjected to small amount of radiation and would like to make sure it is documented in his file. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 February 1990, 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 records show he enlisted in the Regular Army for a period of 3 years on 10 April 1987.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 45K (Tank Turret Repairer).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant’s records also show he was awarded the Army Service Ribbon, the Army Achievement Medal, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 13 January 1989, for wrongfully wearing his uniform improperly on or about 5 January 1989, failing to go at the time prescribed to his appointed place of duty on or about 12 January 1989, and violating a lawful general regulation by wrongfully operating a motor vehicle without a valid driver's license on or about 18 June 1988.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and an oral reprimand; 

	b.  on 16 October 1989, for twice failing to go at the time prescribed to his appointed place of duty on or about 29 September 1989.  His punishment consisted of 7 days of extra duty; and 

	c.  on 11 December 1989, for failing to go at the time prescribed to his appointed place of duty on or about 20 November 1989.  His punishment consisted of a reduction to private first class (PFC)/E-3, 14 days of restriction, 14 days of extra duty, and a forfeiture of $212.00 pay.



5.  The applicant's records contain an extensive history of counseling by several members of his chain of command for various infractions including driving a vehicle without proper registration, reckless driving, failure to obtain proper insurance, multiple instances of failure to repair, poor military appearance, and substandard performance.

6.  On 27 December 1989, 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 – Enlisted Personnel), for misconduct - pattern of misconduct.  Specifically, the immediate commander cited the applicant’s prior instances of NJP as well as his apprehension by Military Police.  The immediate commander recommended a general discharge.

7.  On 27 December 1989, the applicant acknowledged receipt of the commander's intent to separate him.

8.  The applicant's record contain a memorandum, dated 24 January 1990, authored by his immediate commander in which he (the immediate commander) stated that the applicant was notified of the intent to separate him under the provisions of chapter 14 of Army Regulation 635-200.  He was also advised to seek legal counsel with regards to this action and that he had 7 days from the date of the notification to seek legal counsel and return the statement of rights options form completed indicating his election of those rights available to him.  As of 24 January 1990, he had failed to so and that his failure to comply constituted a waiver of those rights.

9.  On 1 February 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

10.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws.  He further elected not to submit a statement in his own behalf.

11.  The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct with the issuance of a general, under honorable conditions discharge.  

12.  On 5 February 1990, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 8 February 1990.  The DD Form 214 he was issued confirms he was separated with a general, under honorable conditions discharge.  This form further confirms he completed a total of 2 years, 9 months, and 28 days of creditable military service.  Item 26 (Separation Code) of this form shows the entry "JKN" and item 27 (Reentry Code) shows the entry "RE-3." 

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s     15-year statute of limitations.

14.  There is no indication in the applicant's available medical records that he was subjected to radiation or that he performed duties that would have subjected him to radiation.

15.  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 regulation.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  
17. 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), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  An 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.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  

18.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  The "JKN" SPD code is the correct code for Soldiers separating under chapter 14-12(b) of Army Regulation 635-200 by reason of misconduct.  

19.  The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross Reference Table, dated 1 March 2001, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKN" had a corresponding RE code of "3." 

20.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge and RE code should be upgraded and that his records should show his exposure to radiation. 

2.  With respect to his discharge, contrary to the applicant’s assertion that his discharge was as a result of being late to formation, the evidence of record shows he had a history of disciplinary problems including three instances of NJP and an extensive history of negative counseling.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  

3.  The evidence of record shows the applicant’s discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

4.  With respect to the RE code, the evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  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.  Additionally, an RE-3 does not prevent a member of reentering military service.

5.  With respect to the radiation issue, the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Even if the applicant's contention was true, the DD Form 214 would not reflect such an entry.  The appropriate form to enter medical entries is the applicant's chronological record of medical care.  In this case, there is no evidence that the applicant was subjected to radiation during his military service.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he 

desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  

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)                                         AR20090014310



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014310



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1