IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100008941 


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 an upgrade of his discharge to a general discharge. He also requests that his Reentry Eligibility (RE) code be changed to an
RE code that will allow him to reenter military service.

2.  The applicant states that like a lot of young people, he thought only about the moment he was in.  He did not think of his future.

   a.  He states everyone makes some kind of a mistake in their life and his just happened to have led to a bad discharge.

   b.  He states he thought he could reenter the military after two years.  He adds he has spoken with many recruiters, he would like a second chance to serve his country, but his RE code prevents him from do so.

3.  The applicant provides no additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army for a period of 4 years on 19 August 1999.  At the time he was 19 years of age.  Upon completion of training he was awarded military occupational specialty 44B (Metal Worker).  He was promoted to private first class (E-3) on 1 July 2000.


2.  The applicant was arraigned at a summary court-martial that convened on
15 October 2001.

   a.  He pled not guilty and was found guilty of the charge and specification of wrongful appropriation of a Panasonic Compact Disk Player, of a value of about $300.00, the property of another Soldier. 

   b.  He was sentenced to be reduced to private (E-1), confinement for 21 days, and forfeiture of $300.00 pay.

   c.  The convening authority approved the sentence on 15 October 2001.

3.  On 8 January 2002, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations), chapter 14 (Misconduct), paragraph 14-12c, based on commission of a serious offense.  The commander stated that the reason for the proposed separation was the applicant tested positive for marijuana in September 2001 and his conviction in October 2001 at a summary court-martial for larceny of private property.  The applicant was also advised of his rights and the procedures involved.

4.  On 8 January 2002, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He acknowledged that military legal counsel for consultation was available to assist him.

   b.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.
   
   c.  The notification indicated he elected not to submit statements in his own behalf.
   
   d.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He was also advised that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   e.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   f.  The applicant placed his signature on the document.

5.  On 8 January 2002, the company commander recommended that the applicant be discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct based on commission of a serious offense with service characterized as under other than honorable conditions.

6.  The intermediate commanders recommended approval of the applicant's separation with an under other than honorable discharge.

7.  On 1 February 2002, the separation authority approved the applicant's separation under the provisions of AR 635-200, paragraph 14-12c, and directed the applicant be given an under other than honorable discharge.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 12 February 2002 and his service was characterized as under other than honorable conditions.  At the time he had completed 2 years, 5 months, and 3 days of net active service during the period of service under review.

	a.  Item 25 (Separation Authority) shows "AR 635-200, PARA 14-12C(2)."

	b.  Item 26 (Separation Code) shows the entry "JKK."

	c.  Item 27 (Reentry Code) shows the entry "4."

9.  On 6 February 2009, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the ADRB requesting an upgrade of his under other than honorable conditions discharge and change to his RE code.  On 14 September 2009, the ADRB, after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable and he was assigned the appropriate RE code.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.
   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12 (Conditions that subject Soldiers to discharge) states that Soldiers are subject to action under this section and provides specific categories that include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.
     
       (1)  Subparagraph 14-12c applies to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.
   
       (2)  Subparagraph 14-12c(2) states that abuse of illegal drugs is serious misconduct.
   
       (3)  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.
   
   b.  Chapter 3, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
   
11.  AR 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.

	a.  The SPD code of "JKQ" is the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 14-12c [emphasis added], based on misconduct.

	b.  The SPD code of "JKK" is the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) [emphasis added], based on misconduct.
12.  The SPD Code/RE Code Cross Reference Table shows that a Soldier issued an SPD code of "JKQ" will be assigned an RE Code of 3.  (A Soldier issued an SPD code of "JKK" will also be assigned an RE Code of 3.)

13.  AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Chapter 2, paragraph 2-4 (Completing the DD Form 214), contains item-by-item instructions for completing the DD Form 214.

	a.  Item 25 states obtain the correct entry from regulatory or directives authorizing the separation.  This authority is to be entered on copies 2, 4, 7, and 8, only.

	b.  Item 26 states obtain the correct entry from AR 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation.  The SPD code is to be entered on copies 2, 4, 7, and 8, only.  

   c.  Item 27 states AR 601-210 determines Regular Army and U.S. Army Reserve reentry eligibility and provides regulatory guidance on the RE codes.

14.  AR 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, provides 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.  RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

15.  AR 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions and that his RE code should be changed because he was young, he made a mistake, and he would like to reenter the military.

2.  Considering that the applicant had demonstrated the capacity for satisfactory service by the completion of training and advancement to PFC (E-3), his contention that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant an upgrade of his discharge.  

3.  The applicant's administrative 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 therefore were appropriate considering all the facts of the case.

4.  The evidence shows the separation authority that is recorded in item 25 of the applicant's DD Form 214 is incorrect.  The administrative separation packet and the separation authority's approval document clearly show the separation authority was Army Regulation 635-200, paragraph 14-12c.  Therefore, it would be appropriate to correct the separation authority.

5.  The evidence shows that the SPD Code of "JKK" the applicant was assigned is incorrect.  Based on the authority and reason for his discharge, the applicant should have been assigned the SPD code of "JKQ."  Therefore, it would be appropriate to correct his SPD code.

6.  The evidence shows that the RE Code of 4 the applicant was assigned is incorrect.  Based on the authority and reason for his discharge, the applicant should have been assigned an RE code of "3".  Therefore, it would be appropriate to correct his RE code.

7.  The evidence of record shows that, during the applicant's period of military service under review, he tested positive for marijuana and he was convicted at a summary court-martial for larceny of private property.  Thus, the evidence shows that the applicant's record of service was not satisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 26 the entry "AR 635-200, PARA 14-12C(2)" and adding the entry "AR 635-200, PARA 14-12C"; and

	b.  deleting from item 26 the entry "JKK" and adding the entry "JKQ"; and

	c.  deleting from item 27 the entry "4" and adding the entry "3."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his discharge.  



      _______ _   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)                                         AR20100008941



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ABCMR Record of Proceedings (cont)                                         AR20100008941



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