IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090020835


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 the reentry (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states an Army career has always been his dream.  During his period of service his mother was diagnosed with cancer and he went absent without leave (AWOL) to take care of her.  He was AWOL from 14 July to 10 August 1995.  He realizes he made a mistake, but his mother was uppermost in his mind.

3.  The applicant provides a self-authored letter and 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 served in the Regular Army from 10 November 1993 to 23 October 1995.  His records show numerous counseling statements for military violations (failure to repair, uniform, missing movement), indebtedness, and nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  failing to be at his appointed place of duty at 0630 hours, 2 August 1994, for which he received 14 days of restriction and extra duty;

	b.  failing to report back to work on 4 May 1995, for which he received 7 days of restriction and extra duty; and

	c.  being absent without authority (AWOL) from his place of duty from 14 July 1995 to 28 July 1995, for which he received a reduction to private (PV1)/E-1, a forfeiture of $420 pay for 2 months, and 45 days of restriction and extra duty.

3.  A note penned by the applicant's first sergeant indicates the applicant received NJP only for an AWOL of 14-28 July 1995 because he was in civil confinement from 29 July to 14 August 1995 (it appears he was in confinement until 10 August 1995).

4.  On an unknown date, the applicant's commander notified the applicant of his intent to discharge him under the provisions of chapter 14, Army Regulation
635-200 for misconduct.  The applicant acknowledged notification and consulted with legal counsel who explained his rights under the administrative discharge process and the basis for discharge under chapter 14.  The applicant did not submit a statement in his own behalf.

5.  On 25 September 1995, the approving authority approved the applicant's separation and directed that he be issued a general discharge under honorable conditions.  On 23 October 1995, the applicant was discharged.

6.  The applicant's DD Form 214 shows he was separated for misconduct under the provisions of chapter 14, Army Regulation 635-200 with a separation (SPD) code of "JKA" and an RE code of "3."

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
8.  Army Regulation 635-5-1 (SPD Codes) states that the 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 the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The SPD code of "JKA" is the correct code for Soldiers separating under the provisions of chapter 14, Army Regulation 635-200 by reason of misconduct.

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE 1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

10.  The SPD Codes/RE Code Cross Reference Table states that when the SPD code is “JKA” then an RE code of “3” will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his RE code changed.

2.  The applicant demonstrated a pattern of misconduct documented by NJPs and counseling statements.  His discharge under the provisions of chapter 14, Army Regulation 635-200 was appropriate considering his quality of service.

3.  The applicant's SPD and RE codes are correct based upon the regulatory authority for his separation.  There is no error or injustice.

4.  The applicant contends he was AWOL because he went home to care for his mother, yet half of his period of absence was spent in civil confinement.  Furthermore, his separation was predicated on a long history of misconduct.  The AWOL offense was the last incident in a long list of incidents leading to his administrative separation action.



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)                                         AR20090020835



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020835



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1