IN THE CASE OF:	  

		BOARD DATE:	  25 January 2011

		DOCKET NUMBER:  AR20100017514 


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 correction of his separation program designator (SPD) code of JKA and reentry eligibility (RE) code of 3 in order to make him eligible for enlistment.

2.  He states, in effect, that he submitted a request to the Army Discharge Review Board (ADRB) and was denied an upgrade of the characterization of his service from general under honorable conditions.  The ADRB advised him that his RE code of 3 enabled him to request a waiver for enlistment and suggested he visit a recruiting station to initiate the waiver process.  The recruiter informed him that he could not receive a waiver to reenter the service because of his SPD code and RE code.  The recruiter advised him to submit an application to the Army Board for Correction of Military Records (ABCMR) requesting his SPD code be changed and his RE code be upgraded.

3.  He contends his SPD code should be changed and his RE code should be upgraded for the following reasons:

* his punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was in contradiction of the procedure provided in paragraph 3-134 of Army Field Manual (FM) 7-21.13 (The Soldier's Guide)
* his punishment under UCMJ and subsequent discharge caused financial mayhem for him
* he was young and immature at the time he committed his minor offenses and, as such, they are pardonable
* following his transfer to another unit, he was summoned back to his old unit to receive a summarized Article 15 which led to another punishment; this Article 15 should not travel with his file anymore
* he never received compensation for his accrued leave or salary for February 2008
* since his discharge, he has not had good or full-time employment with benefits and job security
* he was denied unemployment compensation from the Department of Labor
* according to paragraph 3-145 of FM 7-21.13, a Soldier with a general discharge is entitled to all the cash benefits, but not entitled to GI Bill benefits

4.  He provides:

* a self-authored letter
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on 26 January 1970.  He enlisted in the Regular Army (RA) on 25 May 2007 at the age of 37 years, 4 months, and 13 days.  Upon completion of initial entry training, he was awarded military occupational specialty 92F (Petroleum Supply Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.  However, he held the rank/grade of private first class/E-3 at the time of his discharge.

2.  His record reveals a disciplinary history that includes numerous DA Forms 4856 (Developmental Counseling Form) documenting adverse counseling sessions for committing the following offenses:

* failing to get a haircut
* being disrespectful to a noncommissioned officer on several occasions
* failing to go at the prescribed time to his appointed place of duty on two occasions
* disobeying a lawful order on four occasions
* breaking restriction

3.  His record reveals his disciplinary history also includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions for committing the following offenses in violation of articles of the UCMJ:

* failing to obey a lawful order
* being disrespectful to a noncommissioned officer

4.  On 17 December 2007, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.

5.  He was advised of his rights and the impact of the discharge.  He accepted his right to consult with legal counsel and submitted a statement in his own behalf, but waived consideration of his case by or personal appearance before an administrative separation board.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  In his statement he contended the allegations levied against him and the punishments imposed were, to the best of his knowledge, a result of misunderstanding or misconstruing cultural differences and orientation.

6.  On 15 January 2008, the unit commander recommended that he be separated from the service and that further rehabilitative efforts be waived.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

7.  The separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, and that he be furnished a general under honorable conditions characterization of service.

8.  On 23 February 2008, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with an SPD code of JKA and an RE code of 3
* his narrative reason for separation was "pattern of misconduct"

9.  On 16 March 2009, the President of the ADRB informed him that the board reviewed his case and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

10.  He submitted a request for reconsideration to the ADRB and contended his misconduct was due to family problems because his wife divorced him while he was stationed in Korea.  The ADRB noted the divorce documents he provided as evidence showed he was divorced prior to enlisting in the Army.  On 14 May 2010, the President of the ADRB informed him that the board reconsidered his case and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was again denied.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct for which Soldiers may be separated prior to their normal expiration of term of service.  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.

12.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JKA was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.

13.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 3 was the proper code to assign to members separated with an SPD code of JKA.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  This includes anyone with a Department of the Army-imposed bar to reenlistment in effect at the time of separation or separated for any reason (except length of service retirement) with 18 or more years of active Federal service.

15.  FM 7-21.13 is a pocket reference for subjects in which all Soldiers must maintain proficiency, regardless of rank, component or military occupational specialty.  It condenses information from other FM's, training circulars, Soldier training publications, Army regulations, and other sources.  It addresses both general subjects and selected combat tasks.  While not all-inclusive or intended as a stand-alone document, the guide offers Soldiers a ready reference in many subjects.

16.  FM 7-21.13, paragraph 3-134, states most courts-martial are preceded by an Article 32 investigation.  This is an investigation by an officer, probably from the same installation, that tries to determine if there is enough evidence to go to a court-martial.  It can be thought of as a little like a grand jury in the civilian legal system.  The Article 32 investigation will also consider if the charges are correct and how to proceed with the case, whether by court-martial, nonjudicial punishment, administrative action, or even no action at all.

17.  FM 7-21.13, paragraph 3-136, states that within the UCMJ is a provision for punishing misconduct through judicial proceedings like a court-martial.  The UCMJ also gives commanders the authority to impose nonjudicial punishment, described in the UCMJ under Article 15.  Article 15 provides commanders an essential tool in maintaining discipline.  The article allows commanders to impose punishment for relatively minor infractions.  Only commanders may impose punishment under Article 15.

18.  FM 7-21.13, paragraph 3-145, states that benefits available to Soldiers under the different types of discharges are listed in chapter 7.  Note that with a general discharge, Soldiers keep most of the pay entitlements or VA benefits that they might have accrued thus far.  For example, they can still cash in accrued leave.  However, they do lose any Montgomery GI Bill contributions and any civil service retirement credit (that is, credit toward Federal civil service retirement for active duty military time) to which they would otherwise be entitled.  The biggest problem with a general discharge is that it is the second best type of discharge.  As such, a future employer may inquire as to why they did not get the best type.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his SPD code should be changed and his RE code should be upgraded in order to make him eligible for enlistment were carefully considered and found to lack merit.

2.  He contends his misconduct was the result of his youth and immaturity.  His record shows he was over 37 years of age at the time of his enlistment and at the time of his offenses.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  His record reveals a disciplinary history that includes numerous adverse counseling statements and his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions for a variety of offenses.

4.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct.  The evidence also shows the applicant was assigned the appropriate SPD code of JKA and RE code of 3 at the time of his discharge.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a different SPD code or an upgraded RE code.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

7.  Although he stated he never received compensation for his accrued leave or salary for February 2008, he failed to provide any evidence in support of his claim.  In the absence of evidence to the contrary, administrative regularity in the discharge process associated with final pay is presumed in this case.


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 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)                                         AR20100017514



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ABCMR Record of Proceedings (cont)                                         AR20100017514



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