IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100024524 


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 the narrative reason for his discharge be changed from misconduct to convenience of the government with the corresponding separation program designator (SPD).  He also requests that his reentry eligibility (RE) code be changed from RE-3 to RE-1.

2.  The applicant states he believes that misconduct is too harsh a reason for discharge since he only had minor offenses and has an honorable discharge.  He believes that the reason for his discharge, misconduct, and the fact that he has an honorable discharge are incompatible.  He adds his command abused its authority when it gave him a bad discharge.

3.  The applicant provides 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’s military records show that he enlisted in the Regular Army on 29 July 1998 and was awarded the military occupational specialty of medical supply specialist.

3.  The applicant was counseled in writing for failing to report to his place of duty at the appointed time (five instances), returning from an Alcohol and Drug Abuse Prevention and Control (ADAPC) appointment smelling of alcohol, underage drinking, and failure to comply with counseling statement directive (two instances).

4.  The applicant accepted nonjudicial punishment (NJP) twice for operating a passenger car while impaired by .070 of alcohol per 100 milliliters of blood, failing to stop at a steady red light, operating a privately-owned motor vehicle without valid proof of insurance, underage drinking, and wrongfully using marijuana.

5.  When notified of his commander's intent to recommend his discharge for misconduct and provided his rights in conjunction with that recommendation, the applicant submitted a conditional waiver in which he waived a board of officers to consider his case if he were to be given no less than a general discharge.

6.  The appropriate authority approved the applicant's conditional waiver.  Accordingly, on 25 June 2001 he was given a general discharge for misconduct under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  The DD Form 214 he was issued shows he was assigned the SPD of "JKA" and an RE-3 code.

7.  On 2 April 2004, the Army Discharge Review Board (ADRB) upgraded the applicant's general discharge to an honorable discharge based on a finding that his misconduct was mitigated by his service.  The ADRB did not change the reason and authority for his discharge.

8.  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, 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.  When discharge is ordered under this authority, an under other than honorable conditions (UOTHC) discharge is considered appropriate.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 prescribed basic eligibility for prior-service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.  Those RE codes include RE-1 which applies to individuals who were fully qualified for reenlistment when last separated.  Soldiers assigned an RE-1 are fully qualified for enlistment.  The code RE-3 applies to individuals who are not qualified for continued Army service, but the disqualification is waivable.  Soldiers assigned an RE-3 are ineligible for enlistment unless a waiver is granted.

10.  The SPD/RE Codes Cross Reference Table shows that the SPD "JKA" is assigned an RE-3 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's documented misconduct included five instances of failing to report to his place of duty at the appointed time, returning from an ADAPC appointment smelling of alcohol, underage drinking, twice failing to comply with counseling statement directives, operating a passenger car while impaired by alcohol, failing to stop at a red light, operating a privately-owned motor vehicle without valid proof of insurance, underage drinking, and using marijuana.

2.  These offenses are all punishable under the Uniform Code of Military Justice. 
Therefore, they are not minor offenses.

3.  Such a record certainly constituted grounds to discharge the applicant for misconduct.

4.  While the ADRB upgraded the applicant's discharge to fully honorable, that board did not change the reason and authority for his discharge, finding them to be appropriate in the applicant's case.

5.  Since there is no reason to change the reason for the applicant's discharge, there is no reason to change his SPD or 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 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)                                         AR20100024524



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ABCMR Record of Proceedings (cont)                                         AR20100024524


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