IN THE CASE OF:	

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100023371 


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 reentry eligibility (RE) code be changed from 3 to an RE code allowing him to reenlist; and

	b.  removal of an Article 15 from his record where he was found to be not guilty.
	
2.  The applicant states he wants to go back into the Army but his RE code of 3 is preventing him from doing so.

3.  The applicant provides:

* a memorandum, dated 21 February 2006, from his defense counsel to the separation authority
* his certificate of completion, dated 21 December 2005, for Anger Management Class
* his certificate of achievement for his support during tornado relief operations on 27 November 2005
* his certificate of appreciation, dated 1 July 2005, from the 1st Iraqi Mechanized Brigade


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.  He enlisted in the Regular Army on 13 November 2002 for a period of 3 years. He completed basic combat and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).  He immediately reenlisted on 17 March 2005 for a period of 4 years.

3.  A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) records that on 14 October 2005, he accepted nonjudicial punishment (NJP) for three specifications of failure to go at the time prescribed to his appointed place of duty.  A portion of the punishment imposed was reduction to private first class (PFC)/pay grade E-3.

4.  Five DA Forms 4856 (Development Counseling Form), dated from 4 August to 16 November 2005, document his formal counseling for failing to be at the time prescribed at his appointed place of duty.

5.  A DA Form 2627 records that on 20 January 2006, in a closed hearing under Article 15, Uniform Code of Military Justice, his commander considered whether he should be punished for wrongfully communicating to a noncommissioned officer a threat to kill his company commander.  No punishment was imposed.

6.  On 13 February 2006, his commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12a due to minor disciplinary infractions. The commander advised the applicant he was recommending a general discharge under honorable conditions.


7.  The commander advised the applicant of his right to consult with counsel, submit statements in his own behalf, obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his separation.  

8.  On 21 February 2006, after having consulted with appointed counsel, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to involuntarily separate him.  The applicant indicated he was submitting statements in his own behalf and that he requested counsel.  His statement is not available for review.  The applicant also acknowledged that as the result of issuance of a general discharge he may expect to encounter substantial prejudice in civilian life.  He also acknowledged he would be ineligible to apply for enlistment in the Army for a period of 2 years after discharge.

9.  His commander recommended that he be separated from the Army prior to the expiration of his term of enlistment under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a due his failure to report on three occasions and communicating threats toward a commissioned officer.  The commander stated the applicant had been counseled and, through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures.  The Soldier had demonstrated through repeated misconduct, after formal counseling, that other disposition would be inappropriate.  

10.  His commander stated that after a review of his case, tempered by common sense and sound judgment, a rehabilitative transfer of the applicant would serve no useful purpose.  He requested that the requirement for a rehabilitative transfer be waived based on the determination that further duty of the applicant would not be in the best interests of the Army as it would not produce a quality Soldier.

11.  A statement, dated 21 February, submitted by the applicant from his defense counsel to the separation authority requested that he be retained in the service.  Counsel stated he had not been reassigned and therefore, his separation was prohibited by law.  Counsel also stated the Article 15 he was read for communicating a threat resulted in no punishment which is tantamount to a finding of not guilty.

12.  On 8 March 2006, the separation authority directed the applicant be separated from the Army prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a, for minor disciplinary infractions.  The separation authority waived the requirement for a rehabilitative transfer and directed he be discharged and his service be characterized as general, under honorable conditions.

13.  On 24 March 2006, he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a.  The applicant was assigned a separation program designator (SPD) code of "JKN" and assigned an RE code of 3.  He had completed 3 years, 4 months, and 12 days active service that was characterized as general, under honorable conditions.  

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 5 March 2008, the ADRB reviewed and granted his request to upgrade his discharge to honorable as a matter of equity.  However, the ADRB did not change the reason for his discharge or the RE code.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	 a.  Rehabilitation measures are required prior to initiating separation proceedings for conduct.  However, the rehabilitative transfer requirement may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. 

	 b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12a provides for the discharge of a Soldier due to a pattern of misconduct consisting solely of minor military disciplinary infractions.  A discharge under other than honorable conditions is normally considered 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.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation shows that the SPD "JKN" as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as "Misconduct (minor infractions)."
 
17.  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 (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for 
enlistment.  Table 3-1 (U.S. Army reentry eligibility codes) show that an RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation and they are not eligible for enlistment unless a waiver is granted.  

18.  The SPD/RE Code Cross-Reference Table, dated 31 March 2006, shows that the appropriate RE code for the SPD "JKN" is 3.

19.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 prescribes requirements, policies, limitations, and procedures for imposing non-judicial punishment.

	 a.  Paragraph 3-19 states whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  

	 b.  Paragraph 3-37 states for Soldiers specialist or corporal/pay grade E-4 and below (prior to punishment) the original DA Form 2627 will be filed locally in
unit nonjudicial punishment or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another general court-martial convening authority (GCMCA), whichever occurs first.  For these Soldiers, the imposing commander should annotate item 5 of DA Form 2627 as “Not Applicable (N/A).”  When
the transfer of a Soldier to a new GCM jurisdiction is for the purpose of receiving medical treatment, the Article 15 form will accompany the Soldier to the new GCM.  The 2-year rule will apply in this situation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was properly discharged in accordance with regulations in effect at the time.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
The separation authority waived a rehabilitation transfer in this case as provided for in the regulation.  

2.  The applicant was processed for separation for minor disciplinary infractions.  Therefore, the SPD code "JKN" is correct.  According to the SPD/RE Code Cross-Reference Table the assignment of RE-3 for the applicant's SPD code of "JKN" is administratively correct.


3.  He acknowledged that he understood he would be ineligible to apply for enlistment in the Army for a period of 2 years after he was discharged.  Therefore, he was ineligible for enlistment/reenlistment at the time of his discharge and the assignment of an RE code of 3 is appropriate.

4.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from returning to military service. The disqualification upon which the RE-3 codes were based may be waived for enlistment purposes.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and are required to process enlistment waivers for the applicant’s RE code.

5.  Whether to impose non-judicial punishment  or the amount of punishment to be imposed is the sole decision of the imposing commander.  If he decides no punishment is to be imposed, it does not constitute a finding that the Soldier is not guilty of the offense.  

6.  DA Forms 2627 for Soldiers in pay grade E-4 and below are not filed in their performance file or restricted file of their official military personnel file (OMPF).  However, in this case copies of the DA Forms 2627 are enclosed as supporting documents with his separation processing package.  Therefore, because these forms justify his processing for discharge under chapter 14 of Army Regulation 635-200, it would not be appropriate to remove them from that package.

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)                                         AR20100023371



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ABCMR Record of Proceedings (cont)                                         AR20100023371



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