IN THE CASE OF:	  

		BOARD DATE:	  9 August 2011

		DOCKET NUMBER:  AR20110001959 


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 his separation code and reentry (RE) code be changed. 

2.  The applicant states:

* He was assigned an RE code of 3 and a separation code of "JKA" for discreditable incidents (civilian and military) 
* The Army Discharge Review Board (ADRB) upgraded his general discharge to honorable
* An individual must convince the ADRB the reason for discharge or the characterization of service was inequitable or improper
* He proved his removal from the service was unjust
* He wants his separation code and RE code upgraded to reflect his honorable status
* He is ineligible for enlistment unless a waiver is granted

3.  The applicant provides his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Honorable Discharge Certificate
* ADRB proceedings, dated 2007




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 8 July 1998 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13B (Cannon Crewmember)

3.  On 14 June 2001, discharge proceedings were initiated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 
14-12b, for misconduct (pattern of misconduct).  The unit commander based his recommendation for separation on the following:

* The applicant was convicted at a civilian court for possession of a stolen vehicle, a concealed weapon, and a large capacity M16 ammunition magazine
* He drove without a valid motor vehicle license on three separate occasions an disobeyed the posted speed limit
* He failed to answer a summons to appear in court on three separate occasions
* He was counseled numerous time for failing to report to his place of duty, leaving his place of duty, assaulting a female, disrespecting a noncommissioned officer, and disobeying a commissioned officer

4.  His election form and the separation authority's action are not available.  However, the applicant's DD Form 214 shows he was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had served a total of 2 years, 11 months, and 19 days of creditable active service.  



5.  His DD Form 214 shows in:

* Item 25 (Separation Authority) the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B"  
* Item 26 (Separation Code) the entry "JKA"
* Item 27 (Reentry Code) the entry "3"  
* Item 28 (Narrative Reason for Separation) the entry "MISCONDUCT”

6.  On 29 August 2003, the ADRB denied the applicant's request for an honorable discharge.  On 20 September 2007, the ADRB upgraded his general discharge to honorable.  The Board found the overall length and quality of his service and his post service accomplishments mitigated the discrediting entries in his service record and determined the characterization of service was too harsh and was now inequitable.    

7.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code “JKA” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

8.  Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes:

* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable
* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated

9.  The SPD Code/Reentry Code Cross Reference Table, dated March 2001, shows that when the SPD code is "JKA" an RE code of 3 will be given.  





DISCUSSION AND CONCLUSIONS:

1.  He contends he received an SPD code of "JKA" for discreditable incidents (civilian and military).  However, the reason for discharge based on SPD code “JKA” is “Misconduct.” 

2.  Although his general discharge was upgraded by the ADRB in 2007, there is insufficient evidence to show his discharge was unjust.

3.  The separation code and RE code used in the applicant's case are correct and were applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant's request to change his separation code or RE code.

4.  The applicant's current RE code is a waivable code.  Therefore, the applicant may still apply for service in the Armed Forces and request the appropriate waiver.

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)                                         AR20110001959



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ABCMR Record of Proceedings (cont)                                         AR20110001959



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