IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010339 


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 that his general discharge under honorable conditions be upgraded to a fully honorable discharge.  He also requests that his reentry eligibility (RE) code be changed.

2.  The applicant states that his misconduct was a direct result of not being able to provide information on members of his company to the new company commander.  He adds that he neither had this information nor was in a position to provide it to the commander.

3.  The applicant does not provide any additional documents 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's record shows he enlisted in the Regular Army on 21 September 1982.

3.  On 8 October 1982, nonjudicial punishment (NJP) was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $128.00 pay (suspended), 14 days of restriction, and 14 days of extra duty.

4.  On 20 August 1985, NJP was imposed against the applicant for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of reduction to pay grade E-3, a forfeiture of $185.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  On 16 September 1985, NJP was imposed against the applicant for wrongfully using marijuana, disobeying a lawful order from a noncommissioned officer, and unlawfully pushing a Soldier.  His punishment consisted of reduction to pay grade E-1 (suspended reduction in excess of pay grade E-2), a forfeiture of $250.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

6.  On 16 October 1985, NJP was imposed against the applicant for failing to go to his appointed place of duty.  His punishment consisted of reduction to pay grade E-1 and a forfeiture of $250.00 pay for 2 months.

7.  On 30 October 1985, the unit commander notified the applicant of his intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12a, for minor disciplinary infractions.

8.  On 30 October 1985, the applicant acknowledged receipt of the discharge action.

9.  On 21 November 1985, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation and its effects and the rights available to him, the applicant elected to not submit a statement on his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. 
However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

10.  On 21 January 1986, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed that the applicant be furnished a General Discharge Certificate.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 5 February 1986 under the provisions of Army Regulation 635-200, paragraph 14-12a, for minor disciplinary infractions. 
He was credited with completing 3 years, 4 months, and 15 days of active service.  Item 26 (Separation Code) shows he was assigned a separation program designator (SPD) code of "JKN" and item 27 (Reenlistment Code) shows his RE code as "RE-3, 3C."

12.  On 11 January 1988, the applicant appealed to the ADRB to upgrade his discharge.  On 13 March 1989, the ADRB denied the applicant's request for a discharge upgrade.  The ADRB determined the applicant was properly and equitably discharged.

13.  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 acts or patterns of misconduct.  Paragraph 14-12a provides that a pattern of misconduct consists solely of minor military disciplinary infractions.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that a discharge under other than honorable conditions is normally appropriate for a member who is discharged for acts and patterns of misconduct.

14.  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.

15.  Army Regulation 635-5-1 (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 that the SPD code JKN is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct for a pattern of minor infractions.  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 JKN.

16.  Army Regulation 635-200 states 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) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army 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.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his misconduct was a direct result of not providing information to his commander.  However, the evidence of record shows the applicant received four NJP's, three of which were received within a 3-month period.  His record further shows his discharge accurately reflects his overall record of service.  Therefore, his contention that his discharge was rendered in error is not supported by the available evidence.

2.  The available evidence shows the applicant was separated due to minor disciplinary infractions.  Therefore, he was assigned an RE code of 3 which is consistent with the reason for separation.  The applicant failed to show his assigned RE code is in error or unjust.

3.  The evidence of record also confirms the applicant's discharge processing was accomplished in accordance with applicable regulations and both the narrative reason for separation and the characterization of service are appropriate considering all the facts of the case.  Absent any evidence of error or injustice in the discharge process, the assigned RE code is proper and equitable based on the authority and reason for discharge.

4.  The applicant's record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge or a change to his RE 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)                                         AR20100010339



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ABCMR Record of Proceedings (cont)                                         AR20100010339



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