IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100008717 


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 upgrade of his general discharge to an honorable discharge, change of the narrative reason for his discharge to a reason other than misconduct, and change of his reentry eligibility (RE) code from RE-3 to either RE-2 or RE-1.

2.  The applicant states his military record should have resulted in him being issued an honorable discharge.  He states he was severely misinformed about his military status and benefits after discharge and he was only recently better informed about his status.  He further states he is trying to join the Army Reserve.

3.  The applicant does not provide any additional documentation.

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 enlisted in the Regular Army (RA) on 21 November 1989.  He completed the required training and he was awarded military occupational specialty 63W (wheel vehicle repairer).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 22 December 1992 for four instances of failure to repair.

4.  On 26 January 1993, the applicant again accepted NJP, this time for wrongfully using marijuana.

5.  The applicant's commander notified him of his intent to recommend his discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense due to his positive urinalysis for marijuana and of his rights in conjunction with that recommendation.  He recommended the applicant receive a general discharge.

6.  On 5 February 1993, having been advised by his consulting legal counsel, the applicant submitted a request for conditional waiver wherein he waived his right to have a board of officers to hear his case contingent upon receiving a characterization of service of no less than a general discharge.  In that waiver, the applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.

7.  The applicant's commander subsequently forwarded his recommendation to discharge the applicant for misconduct because of a commission of a serious offense, which was approved by the appropriate authority.

8.  Accordingly, on 23 February 1993, the applicant was issued a general discharge for misconduct - commission of a serious offense.  The applicant's
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph
14-12c and he was issued a separation code of "JKQ," an RE code of RE-3, and a narrative reason for separation of "Misconduct - commission of a serious offense."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-12c applies to the separation of individuals who committed a serious military or civil offense, if the specific circumstance of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial.  When separation is ordered under this authority, an under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

12.  Army Regulation 635-200 further 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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. 

Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation 635-200, 

chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  However, on 28 February 1995 Army Regulation 635-200 was revised affecting the discontinued use of RE-2.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP for four incidents of failure to repair and the illegal use of marijuana.  As such, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  The applicant was informed under legal advice that he could experience substantial prejudice if he was issued a general discharge.  As such, he was properly informed of the consequences of consenting to a general discharge.

3.  Soldiers being separated for misconduct are normally given an under other than honorable conditions discharge.  The applicant's overall service record was reviewed when he submitted his request for conditional waiver.  It is presumed that the applicant's length of service was taken into consideration when the convening authority accepted his conditional waiver and directed issuance of a general discharge.  The applicant has not submitted any valid reason to upgrade his general discharge to an honorable discharge.

4.  The applicant was appropriately discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  Based on the authority for his discharge he was issued the proper corresponding narrative reason for separation, SPD code, and RE code.  Therefore, there is no basis for changing these items of his DD Form 214.

5.  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 reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20100008717



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ABCMR Record of Proceedings (cont)                                         AR20100008717



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