IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013293 


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 discharge be upgraded to honorable and that his reentry eligibility (RE) code be changed to "1."

2.  The applicant states his record does show the correct reason for his discharge.  He states he was 17 years old at the time of his offense which he believes was a major factor.  He would like to enlist in the Army National Guard (ARNG) which requires an upgrade to his discharge because the ARNG is currently not accepting enlistment waivers.

3.  The applicant provides a DD Form 370 (Request for Reference) from his former battalion commander, dated 5 March 2010, as documentary evidence 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 was born on 10 April 1976.  He enlisted in the Regular Army on 18 May 1993 at the age of 17 years, 1 month, and 9 days old.  He completed his initial entry training and he was awarded military occupational specialty 63B (Light Wheeled Mechanic).  After completing his training, he reported to the Ranger Training Brigade at Fort Benning to attend ranger school.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from 27 December 1993 to 14 February 1994.

4.  On 17 February 1994, he was medically evaluated and found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation, he was found to be mentally responsible, able to distinguish right from wrong with the ability to adhere to the right, and that he met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 17 March 1994, his commander notified him that action was initiated to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The justification for initiating the separation action was his receipt of NJP on 9 March 1994 for being AWOL for a period of 50 days.  On 17 March 1994, the applicant acknowledged receipt of the separation notification.

6.  The commander advised him of his right to be represented by counsel, to submit written statements in his own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  Based on the applicant's time in service and recommended discharge characterization, he was informed he was not entitled to request a hearing before an administrative separation board.

7.  On 18 March 1994, he consulted with counsel and elected not to submit personal statements on his own behalf.  He indicated he understood that he could expect to encounter prejudice in civilian life with a general discharge under honorable conditions.  He further acknowledged he could apply to the Army Discharge Review Board or this Board for an upgrade of his discharge and that he would be ineligible to enlist in the U.S. Army for a 2-year period after his separation.

8.  On 21 March 1994, the applicant's commander recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct for commission of a serious offense.  The commander recommended a general discharge.  In addition, the commander stated the applicant had received an Article 15 under the UCMJ for the aforementioned offense on 9 March 1994.

9.  The approval authority approved the applicant's discharge from the service with the issuance of a General Discharge Certificate on 22 March 1994.  The approval authority denied the applicant a rehabilitative transfer and transfer to the Individual Ready Reserve of the Army Reserve.

10.  On 4 April 1994 the applicant was discharged.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) confirming he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct for commission of a serious offense with a general discharge.  He completed 10 months and 17 days of creditable active service.  Item 26 (Separation Code) shows the entry "JKQ" and item 27 (Reentry Code) shows the entry "3."

11.  There is no evidence to show the applicant applied to the Army Discharge Review Board within its established 15-year statute of limitations for a discharge upgrade.

12.  In support of his application, he provided a reference from his ranger school battalion commander.  His commander stated he knew the applicant for a brief time and that during this period the applicant had failed to be at his appointed place of duty.  He stated the applicant was a good Soldier who made a mistake in judgment.  He now recommends him for enlistment in the Armed Forces.

13.  References:

	a.  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, and convictions by civil authorities.  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.  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.

	c.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL in excess of 30 days is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to the lowest enlisted grade and forfeiture of all pay and allowances.

	d.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes that SPD codes are used to provide a statistical accounting of the reasons for which active Army personnel are separated from active duty.  SPD codes are not intended to stigmatize an individual in any manner.  The reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  The SPD code "JKQ" means separation for misconduct for commission of a serious offense.

	e.  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.

	f.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  These RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment separation processing procedure.  Table 3-1 includes a list of Regular Army RE codes.

		(1)  RE "1" applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  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.
	g.  The Separation Program Designator Code/Reentry Eligibility Code Cross Reference Table shows that the appropriate RE code for the SPD code of "JKG" is RE "3."

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant's company commander initiated separation action against him for being AWOL in excess of 30 days.   This offense is a violation of the UCMJ with the maximum punishment under the Manual for Courts-Martial of a dishonorable discharge, confinement for 12 to 18 months, reduction in grade, and forfeiture of all pay and allowances.

2.  The applicant contends that he was 17 years of age when he entered the service and committed the offense.  He contends that his youth and immaturity contributed to his decision to go AWOL.

3.  Although a discharge under other than honorable conditions was normally issued to Soldiers discharged by reason of misconduct for commission of a serious offense, the applicant was discharged with a general discharge.  Therefore, it appears the applicant's youth and immaturity were taken into consideration by his chain of command.  Considering the known facts of this case, the separation authority was lenient.

4.  He also contends his RE code should be upgraded to a "1" so he can enlist in the ARNG.

5.  The evidence of record confirms the applicant’s RE code was determined based on his separation under the provisions of chapter 14-12c of Army Regulation 635-200 for commission of a serious offense.  The appropriate SPD code is "JKQ" and its corresponding RE code is "3."

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief to upgrade his discharge and its associated 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)                                         AR20100013293



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ABCMR Record of Proceedings (cont)                                         AR20100013293



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