IN THE CASE OF:	

		BOARD DATE:	 20 May 2010 

		DOCKET NUMBER:  AR20090018974 


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 the narrative reason and authority for discharge and its corresponding reentry eligibility (RE) code be corrected to a more favorable reason, authority and code. 

2.  The applicant states he was having problems with his spouse causing him to miss formations.  He states, in effect, that he asked for a discharge so he could take care of his family's problems. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of 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 initially enlisted in the Army Reserve on 25 July 1994.  Then on 21 May 1996, he enlisted in the Regular Army.  He completed basic and advanced individual training meeting the qualification standards for military occupational specialty 57E (Laundry and Bath Specialist).  

3.  The facts and circumstances concerning the applicant's conduct are unknown for his separation processing packet is not available for the Board's review.	

4.  The applicant was discharged on 4 September 1997.  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 1 year, 3 months, and 14 days of creditable active military service during the period under review.  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."

5.  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.  

6.  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.

7.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason, authority, and RE code should be upgraded to a more favorable code.

2.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  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 Army Regulation 635-200 due to misconduct.  The only valid narrative reason for separation permitted under this paragraph is "misconduct" which is to be assigned the SPD "JFA" and an RE-3.

4.  Although the applicant's separation packet was not available, it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

5.  While the applicant states he had family problems, he has not submitted evidence to support his statement.  However, even if he had evidence to support his statement, the facts and circumstances of his family problems would not mitigate the fact that he was separated for his own personal misconduct.

6.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is insufficient evidence to change the narrative reason for discharge or upgrade the RE code to a more favorable code. 

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)                                         AR20090018974





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ABCMR Record of Proceedings (cont)                                         AR20090018974



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