IN THE CASE OF:	  

		BOARD DATE:	    31 May 2011

		DOCKET NUMBER:  AR20100022248 


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:

   a.   his rank at the time of discharge be changed from specialist (SPC)/E-4 to sergeant (SGT)/E-5;
   
   b.  his reentry eligibility (RE) code be changed from RE-3B to RE-1; and
   
   c.  an upgrade of his general, under honorable conditions discharge (GD) to a honorable discharge (HD).

2.  The applicant states:

	a.  he was reduced in rank as a result of behavioral-related post-traumatic stress disorder (PTSD) symptoms;

	b.  he was diagnosed with PTSD while serving on active duty at Fort Carson, Colorado; and

	c.  his rank, HD, and RE code should be restored.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and the list of documents indicated in his application to this Board.


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 13 February 2003.  He was trained in military occupational specialty 11B (Infantryman).

3.  A Standard Form 600 (Chronological Record of Medical Care), dated 27 March 2006, shows the applicant was diagnosed with chronic PTSD.  It also shows he was released without limitations following the medical treatment he received.

4.  The applicant's official military personnel file (OMPF) contains a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) that shows:

	a.  He accepted nonjudicial punishment (NJP) on 19 September 2006 while serving in the rank of SGT for:

* departing his appointed place of duty as the charge of quarters without authority on 28 August 2006
* twice failing to go at the time prescribed to his appointed place of duty on 22 and 25 August 2006
* disobeying a lawful order on 29 August 2006
* being derelict in the performance of his duties on two separate occasions 

	b.  The punishment imposed consisted of reduction to SPC, forfeiture of $921.00 pay for 2 months, and 45 days of extra duty and restriction.

	c.  The applicant appealed the NJP and his appeal was reviewed by a Judge Advocate General attorney who opined that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate for the offense committed.

	d.  On 29 September 2006, the appellate authority, the 2nd Basic Combat Training, 2nd Infantry Division Commander, denied the applicant's appeal.  On 29 September 2006, the applicant acknowledged the action taken on his appeal.

5.  A Standard Form 600, dated 26 September 2006, shows a clinical psychologist evaluated the applicant and assessed the following mental status findings:

* his mood was depressed and anxious
* affect was broad and congruent with mood
* mental status was normal
* behavior demonstrated no abnormalities
* attitude was cooperative
* he had no hallucinations
* thought process was not impaired

He was released without limitations.

6.  On 19 October 2006, the unit commander notified the applicant that he was initiating action to separate him under the provisions Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct, with a GD based on the following reasons:

	a.  for each of the infractions or misconduct identified in his 19 September 2006 NJP action (paragraph 4a above);

   b.  for receiving a "driving under the influence" on 2 September 2006;
   
   c.  failing to report for duty on 19, 26, and 29 September 2006; and
   
   d.  missing his Army Substance Abuse Program (ASAP) appointment on 5 September 2006.
   
7.  On 19 October 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  The applicant completed his election of rights requesting representation by counsel and electing not to make a statement in his own behalf.


8.  A Standard Form 600, dated 26 October 2006, shows:

   a.  a recommendation was made for the applicant to appear before a medical evaluation board (MEB) based on his PTSD;

   b.  he was enrolled the ASAP; and
   
   c.  he was currently reported AWOL and his treatment should resume and an evaluation made upon his return.

9.  On 10 November 2006, the separation authority approved the applicant's separation action under the provisions of Army Regulation 635-200, paragraph 14-12b, with issuance of a GD.

10.  On 16 November 2006, Headquarters, U.S. Army Garrison, Fort Carson, published Orders 320-0002 directing the applicant's discharge in the rank of SPC on 22 November 2006.  

11.  A Standard Form 600, dated 17 November 2006, shows the applicant advised his clinical psychologist he would be discharged on 22 November 2006, was doing well, and did not need services at that time.  Accordingly, his case was closed.

12.  On 22 November 2006, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Pattern of Misconduct" having completed 3 years, 9 months, and 10 days of creditable active service.  The DD Form 214 issued at that time includes the following entries:

* item 4a (Grade Rate or Rank) - "SPC"
* item 4b (Pay Grade) - "E-4"
* item 24 (Character of Service) - "Under Honorable Conditions (General)"
* item 26 (Separation Code) - "JKA"
* item 27 (Reentry Code) - "3"

13.  On 29 April 2011, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny relief.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or 

release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4), states that the active duty grade of rank and pay grade at the time of separation will be entered in item 4a and item 4b of the DD Form 214.

15.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

16.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 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. It states the SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns 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 JKA.

18.  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 Regular Army (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was discharged in the rank of SGT, received an HD, and was assigned RE code 1 because his behavior that led to these actions resulted from his PTSD condition.

2.  The evidence of record confirms the applicant was diagnosed with chronic PTSD; however, medical findings confirm his mental status, behavior, and thought process were normal or not impaired and he was released from treatment to duty without limitations.  As such, there is no evidence of record and the applicant did not provide any evidence to show his PTSD condition rendered him incapable of knowing right from wrong or resulted in the behavior that led to his reduction, discharge, and RE code assignment, as he claims.

3.  The evidence of record confirms he was reduced to the rank of SPC on 19 September 2006, as a result of NJP action, and this was the rank he held on the date of his separation as evidenced by his discharge orders.  As a result there is no basis upon which to change to the applicant's record or DD Form 214 to show he held the rank of SGT on the date of his discharge.

4.  The evidence of record shows the applicant’s misconduct separation was processed in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The applicant's NJP and multiple misconduct related actions committed while on active duty clearly diminished the overall quality of his service below that meriting an honorable discharge. 

5.  Under the governing regulation, the SPD code of JKA and an RE-3 code are the proper codes to assign members separating under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct.  As a result, the RE-3 code assigned to the applicant at the time of his discharge was and still is appropriate based on the authority and reason for his separation.  Absent any evidence of an error or injustice related to the assigned RE code, there is an insufficient evidentiary basis to support granting the requested relief.


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)                                         AR20100022248



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ABCMR Record of Proceedings (cont)                                         AR20100022248



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