IN THE CASE OF:
BOARD DATE: 26 August 2010
DOCKET NUMBER: AR20100000462
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 his narrative reason for separation be changed.
2. The applicant states:
* He has tried to reenlist but wasn't able to
* He never signed a bar to reenlistment
* He was never told he could not reenlist in the Army
* His discharge material states he would have to wait a period of 2 years before he was able to reenlist and now no one wants to honor it
3. The applicant provides a copy of his Election of Rights 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 applicants 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 applicants 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 25 February 2004 for a period of 3 years. He successfully completed basic and advanced individual training. He was awarded military occupational specialty 92G (food service). He attained the rank of specialist.
3. In 2004, nonjudicial punishment was imposed against the applicant for failure to go to his appointed place (three specifications); making a false official statement, and impersonating a person of superior authority. His punishment consisted of a reduction to E-2, a forfeiture of pay (suspended), and extra duty.
4. On 14 July 2005, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), for misconduct (commission of serious offense). The unit commander recommended the applicant be issued a discharge under other than honorable conditions for wrongfully using cocaine.
5. On 14 July 2005, the applicant consulted with counsel and waived his rights. He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he further acknowledged that as the result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life. He also elected not to submit a statement on his own behalf. His election of rights states, in pertinent part, "I further understand that I will be ineligible for enlistment in the United States Army for a period of 2 years after discharge."
6. On 5 August 2005, the separation authority approved the recommendation for discharge and directed the applicant be discharged under other than honorable conditions.
7. On 19 August 2005, the applicant was issued a discharge under other than honorable conditions for misconduct.
8. Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)." Item
26 (Separation Code) of his DD Form 214 shows the entry "JKK." Item
28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "MISCONDUCT."
9. On 14 March 2006, the Army Discharge Review Board upgraded the applicant's discharge to under honorable conditions (general discharge).
10. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons. The regulation states the reason for discharge based on SPD code JKK is misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. It appears he could reenlist; however, due to his narrative reason for separation (and presumably his reentry code) he would need a waiver to determine his eligibility for reenlistment. Enlistment/reenlistment is not a right, but is based upon the needs of the Army.
2. The applicant's narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation. Therefore, 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) AR20100000462
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ABCMR Record of Proceedings (cont) AR20100000462
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