IN THE CASE OF:	  

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016540 


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, amendment to Item 24 (Character of Service), Item 26 (Separation Code), Item 27 (Reenlistment Code), and Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he believes that Item 24 should be changed to a general discharge, Item 27 to a reenlistment code that allows him to reenlist, and the narrative reason in Item 28 to read “entry level separation.”  He served on active duty for less than 6 months.  The first sergeant choose his military occupational specialty (MOS) for him.  He requested and received a meeting with the captain, advised him of his situation, and was told he could apply for a new MOS.  At Advanced Individual Training (AIT) he again expressed his situation and it was explained to him he could reapply for another MOS in one year.  

3.  The applicant also states that he was unable to come up with a solution to his problem.  He was hopelessly lost in depression, cut his arms, and was hospitalized in the psychiatric ward.  He believes he was discharged in the fastest and easiest way for those who administered his discharge.  If his first sergeant had done the right thing and allowed him his choice of MOSs he would not have lost all hope.  He has paid for this incident for over 20 years and has missed so much because of his discharge.  

4.  The applicant provides a copy of his DD Form 214.


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 military records show he enlisted in the Army Delayed Entry Program on 21 November 1988.  He enlisted in the Regular Army in pay grade E-1 on 18 January 1989.  One of his enlistment options was for training in MOS 97B (Counter Intelligence Specialist).  He did not complete AIT.  

3.  A Report of Mental Status Evaluation, dated 13 June 1989, shows the applicant's behavior was found to be immature, unreliable, and passive.  He was found to be fully alert and fully oriented, his mood or affect was anxious, his thinking process clear, his thought content was normal, and his memory was good.  The evaluating psychiatrist, an Army Medical Corps officer, found the applicant to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  He was psychiatrically cleared for any administrative action deemed appropriate.

4.  On 15 June 1989, the applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, for avoiding military service by intentionally injuring himself by cutting both forearms repeatedly on or about 7 June 1989.  His punishment included a forfeiture of $160.00 pay for one month and 14 days extra duty and restriction.  The applicant did not appeal the punishment.

5.  On 15 June 1989, the company commander notified the applicant of the proposed action to separate under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (malingering).  The company commander recommended the applicant’s separation because he had admittedly cut both forearms to avoid any further training and to be relieved of further military service.

6.  A DA Form 2173, dated 16 June 1989, shows the applicant was hospitalized on 7 June 1989 for intentionally trying to cut both hands with glass from a broken window.  The form stated he repeatedly cut both his wrists and forearms with a piece of glass with the stated purpose of getting out of the Army.  

7.  On 16 June 1989, the applicant, after consulting with counsel, acknowledged receipt of the proposed separation action for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14.  The applicant also acknowledged the proposed separation and receiving a characterization of service or description of separation no less favorable than entry level separation. He waived his rights to appear before a board of officers and elected not to submit a statement in his own behalf.

8.  On 19 June 1989, the applicant's company commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c.  

9.  On 19 June 1989, the applicant's battalion commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (malingering), with an entry level separation.

10.  On 28 June 1989, the appropriate separation authority approved the discharge action for misconduct – commission of a serious offense and directed the issuance of an entry level separation (uncharacterized).

11.  On 30 June 1989, the applicant was discharged from active duty in pay grade E-1 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He was credited with completing 5 months and 13 days of net active service.

12.  Item 24 of the applicant’s DD Form 214 shows “Uncharacterized,” Item 26 shows “JKQ,” Item 27 shows “RE-3,” and Item 28 shows “Misconduct – Commission of a Serious Offense.”

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established 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.  The characterization of service for a member in an entry level status would be described as an entry level separation (uncharacterized).  

14.  Army Regulation 635-200, Chapter 11, paragraph 11-2, in effect at the time, provided for the separation of a Soldier in entry level status on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment, or minor disciplinary infractions.  That applied to enlisted Soldiers who were in entry-level status and before the date of the initiation of separation action, had completed no more than 180 days (3 months) of creditable continuous active duty or active duty for training.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the 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 designator (SPD) codes to be used for those stated reasons.  The SPD of "JKQ" as shown on the applicant’s DD Form 214 was appropriate when the narrative reason for involuntary discharge was "misconduct” and the authority for discharge was Army Regulation 635-200, paragraph 14-12c.

16.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKQ" had a corresponding RE code of "3."  

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant enlisted in the Regular Army on 18 January 1989 for training in MOS 97B.  There is no evidence to show his first sergeant "chose" his MOS for him.  

2.  The applicant did not complete training for assignment in an MOS, and he was never promoted beyond pay grade E-1.  On 15 June 1989, his company commander recommended he be separated for misconduct based on his admitting to cutting both forearms to avoid any further training and relief of further military service.  He was psychiatrically cleared for any action deemed necessary by his command.  He also acknowledged the reason for his discharge and that he could receive a characterization of service no less favorable than an entry level separation.  Based on the evidence, he was not entitled to an entry-level status separation.  

2.  The applicant was discharged on 30 June 1989 and in accordance with pertinent regulations his character of service was characterized as "Uncharacterized."  He was issued an SPD code of "JKQ" that has a corresponding RE code of "3."  The RE code applied to the applicant's DD Form 214 is commensurate with and corresponds to the reason for the applicant's discharge.  

3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090016540



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ABCMR Record of Proceedings (cont)                                         AR20090016540



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