IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110001153 


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 show his reentry (RE) code as "1" instead of "3" and to change his separation program designator (SPD) code of "JFF."

2.  The applicant states his discharge was upgraded to honorable (by the Army Discharge Review Board (ADRB)) because of insufficient evidence to warrant an under other than honorable conditions discharge.  He was not afforded the due process afforded him to fight the discharge process.  In 10 years of service he received only two disciplinary actions, two Army Good Conduct Medals, made
E-5 promotable, and served as a platoon sergeant.

3.  The applicant provides three pages of his ADRB case report.

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 on 22 February 1996.  He was discharged on 7 April 2004 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, by reason of misconduct - patterns of misconduct, in the rank/grade of private (PV1)/E-1.  He completed 8 years, 1 month, and 16 days of creditable active service this period with 3 months and 22 days of total prior active service.

3.  The DD Form 214 he was issued shows in:

* item 24 (Character of Service) the entry "Under Other Than Honorable Conditions"
* item 25 the entry "Army Regulation 635-200, paragraph 14-12b"
* item 26 Separation Code) the entry "JKA"
* item 27 (RE Code) the entry "3"
* item 28 (Narrative Reason for Separation the entry "Misconduct"

4.  On 22 June 2005, the applicant petitioned the ADRB for an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

5.  On 15 March 2006, the ADRB determined that his discharge was both improper and inequitable as there was sufficient evidence to question if the applicant was afforded due process during his separation proceedings.  The ADRB directed his characterization of service be changed to honorable and the narrative reason for separation be changed to secretarial authority.  The ADRB directive specified that their action did not entail a change to the RE code.

6.  The ADRB had noted that the applicant had two records of nonjudicial punishment under Article 15, Uniform Code of Military Justice.  The first one was for failure to go to his appointed place of duty and violation of curfew.  The second one was for making a false official statement and wrongful wear of Special Forces and High Altitude/Low Opening Badges.

7.  On 16 March 2006, the ADRB informed the applicant of that board's decision.  A new DD Form 214 was issued to the applicant and the original DD Form 214 was voided.  The new DD Form 214 shows in:

* item 24 the entry "Honorable"
* item 25 the entry "Army Regulation 635-200, paragraph 5-3"
* item 26 the entry "JFF"
* item 27 the entry "3"
* item 28 the entry "Secretarial Authority"

8.  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 that the SPD code of:

	a.  JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of Pattern 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.

	b.  JFF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial Authority.  The SPD/RE Code Cross Reference Table stipulates that for an SPD code of JFF, the HQDA directive authorizing the separation program or specific separation will provide the RE code.

9.  Army Regulation 635-200 further states 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.  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 for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was appropriately assigned an RE code of "3" at the time of his discharge.  The upgrade of his discharge to honorable by the ADRB did not change his RE code.  

2.  Although the ADRB determined that the applicant had been improperly discharged because it appeared proper procedures were not followed, the ADRB never questioned the underlying misconduct that led to the initiation of separation proceedings.  The ADRB had the authority to change his RE code to 1, but specifically directed that their action did not entail a change to the RE code.  It appears that the ADRB made a proper decision to retain his assigned RE code of 3 and it remains valid now.

3.  The SPD code of "JFF" as shown on his new DD Form 214 is the correct code for Soldiers separated by reason of secretarial authority.  Therefore, his is not entitled to 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 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)                                         AR20110001153



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ABCMR Record of Proceedings (cont)                                         AR20110001153



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