IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028254 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his reentry eligibility (RE) code from RE-3 to RE-1 and the narrative reason for separation from Misconduct – Pattern of Misconduct. 

2.  He states he was discharged from active duty for having a private (PVT) change his Armed Services Vocational Aptitude Battery (ASVAB) line scores. 

3.  He provided a copy of his DD Form 214.  

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.  His records show he enlisted in the Regular Army on 16 June 1975.  After the completion of training and several reenlistments, he served in military occupational specialty (MOS) 71L (Administrative Specialist) and in MOS 75D (Personnel Records Specialist).  

3.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows he was administered nonjudicial punishment (NJP) in November 1983 for soliciting PVT SKD to commit forgery by changing the General Technical (GT) score in his ASVAB line scores. 

4.  His record also contains a DA Form 2496 (Disposition Form), dated 13 July 1984 which shows he tested positive for Tetrahydrocannabinol (THC) on 3 May 1984, during a unit drug test.  
 
5.  On 9 August 1984, the applicant’s unit commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  The commander also notified him that the action could result in his separation from the Army with an Under Other Than Honorable Conditions (UOTHC) discharge.

6.  He was advised of his rights and the impact of the discharge.  His acknowledgment statement shows he:

* accepted his right to consult with legal counsel
* did not submit a statement in his own behalf
* waived consideration of his case by or personal appearance before an administrative separation board

7.  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.  He further understood that he would be temporarily or permanently ineligible to apply for reenlistment in the U.S. Army after discharge. 

8.  On 9 August 1984, the unit commander recommended that he be separated from the service and that further rehabilitative efforts be waived.  He noted the applicant tested positive for THC during a unit drug test and that he received NJP for forgery.  The battalion and brigade commanders reviewed the proposed discharge action and recommended approval.
9.  The separation authority waived further rehabilitative efforts and directed he be:

* reduced to the lowest enlisted grade 
* separated under the provisions of Army Regulation 635-200, paragraph 14-12b with a separation program designator (SPD) code of JKM (JKE)
* furnished a DD Form 794A (Under Other Than Honorable Conditions) discharge certificate

10.  On 11 September 1984, he was discharged accordingly.  His DD Form 214 shows:

* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with an SPD code of JKM and an RE code of 3
* his narrative reason for separation was "pattern of misconduct"

11.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  On 12 September 1985, the ADRB informed the applicant that his discharge had been upgraded to a General Discharge, under honorable conditions. 

12.  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.

13.  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 JKM was the appropriate code to assign to Soldiers separated under the provisions of Paragraph 14-12b, Army Regulation 635-200, by reason of misconduct – pattern of misconduct.  The SPD/RE Code Cross Reference Table indicates that RE-3 is the proper code to assign members receiving a “JKM” SPD code.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his RE code should be changed to an Re-1 and the narrative reason for separation should also be changed were carefully considered and found to lack merit.

2.  He contends he was released from active duty for having his ASVAB score changed.  His record reveals he received NJP for this infraction and that he also tested positive for THC during a unit drug test.  

3.  As a result of his behavior, 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 and issued an Under Other Than Honorable Conditions discharge certificate.  He was also assigned the appropriate SPD code of JKM and RE code of 3 at the time of his discharge.

4.  He appealed to the ADRB for an upgrade of his discharge and accordingly, the ADRB upgraded his discharge to a General Discharge, under honorable conditions. 
 
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.  

6.  The ABCMR does not amend and/or correct military records solely at the applicant’s request or for the passage of time.  

7.  In view of the foregoing, he is not entitled to either a different narrative reason for separation or an upgraded 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 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)                                         AR20100028254



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ABCMR Record of Proceedings (cont)                                         AR20100028254



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