IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100018140 


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, in effect, correction of his separation program designator (SPD) code of "JKM" and reentry (RE) code of "3" in order to make him eligible for reentering military service.

2.  He states, in effect, he received an Article 15 and he was reduced for one offense during his 46 months of service.  He was also given a general discharge that was upgraded to honorable by the Army Discharge Review Board (ADRB) on 6 August 1998.  The ADRB neglected to correct the two codes with the honorable characterization.  He wishes to reenter the Army and he was told that even with an honorable discharge he still needs his SPD and RE code changed to acceptable codes for reenlistment.

3.  He provides:

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

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 30 June 1986.  The highest rank/grade he attained while serving on active duty was specialist (SPC)/
E-4.  However, he held the rank/grade of private first class (PFC)/E-3 at the time of his discharge.

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

* failing to go at the time prescribed to his appointed place of duty on four occasions
* losing his helmet
* failing to repay loans

4.  On 5 May 1989, he acknowledged receipt of a General Officer Letter of Reprimand (GOLOR) for driving while intoxicated.  He elected not to submit a rebuttal.

5.  On 25 April 1989, he was issued a DA Form 4126-R (Bar to Reenlistment Certificate) for being convicted of operating a motor vehicle while intoxicated and having his driving privileges suspended.

6.  His record reveals his disciplinary history also includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  He was reduced to PFC/E-3 as a result of this Article 15.

7.  On 16 April 1990, the applicant's unit commander notified him he was initiating action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.

8.  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 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.  

9.  On 19 April 1990, the unit commander recommended the applicant's separation 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.

10.  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 for misconduct and issuance of a general discharge.

11.  On 1 May 1990, 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, chapter 14, with an SPD code of "JKM" and an RE code of "3"
* his narrative reason for separation was "misconduct"

12.  On 14 June 2006, upon review of the applicant's application and personnel records, the ADRB determined his discharge was inequitable because the quality of his service did not warrant granting of a general discharge.  The applicant's generally acceptable personal conduct and performance of duty outweighed the discrediting entries in his personnel records.  Accordingly, the ADRB unanimously voted to upgrade his general discharge to an honorable discharge.  However, the board determined that the reason for discharge was proper and equitable and voted not to change it.

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 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.

14.  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, in pertinent part, that the SPD code "JKM" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, by reason of misconduct.  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 "JKM."

15.  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.

16.  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 which discontinued the use of RE-2.

DISCUSSION AND CONCLUSIONS:

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

2.  His record reveals a disciplinary history that includes numerous adverse counseling statements, a driving while intoxicated incident, a GOLOR, a Bar to Reenlistment Certificate, and his acceptance of NJP under Article 15, UCMJ.

3.  The evidence of record shows he was recommended and approved for discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct.  The evidence also shows the applicant was assigned the appropriate SPD code of "JKM" and the corresponding RE code of "3" at the time of his discharge.

4.  Although the ADRB upgraded his discharge to honorable based on equity, his reason for discharge was both proper and equitable, which resulted in no change to his SPD or RE codes.  Therefore, there was no basis for changing his SPD and RE codes then and there is no basis for changing them now.

5.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from reenlistment.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if the applicant desires to reenter military service, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes.

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)                                         AR20100018140



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1