IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110014354 


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 reconsideration of his earlier petition to change his reentry (RE) code.  As a new issue, he requests upgrade of his discharge.   

2.  The applicant states he did not properly understand the procedures of his discharge.  

3.  The applicant provides a self-authored statement and Congressional Inquiry in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR201000012035 on 5 October 2010.  

2.  The applicant submitted a self-authored statement and a Congressional Inquiry which were not previously considered by the Board; therefore, these documents are considered new evidence which warrant consideration.

3.  On 3 April 2002, the applicant enlisted in the Regular Army.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  The highest rank/grade he attained and held on active duty was specialist/pay grade E-4.  

4.  The applicant’s disciplinary record includes formal counseling by members of his chain of command on sub-standard duty performance and conduct-related issues on four separate occasions between 14 June and 28 September 2005.  It also includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  20 March 2005, for stealing batteries; and  

	b.  18 May 2005, for wrongfully using methamphetamines.

5.  On 5 August 2006, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, for pattern of misconduct. 

6.  On 5 September 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to receiving this counsel, the applicant elected not to submit statements in his own behalf.  

7.  On 7 September 2007, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct, and directed the issuance of a general discharge (GD).  On 23 October 2006, the applicant was discharged accordingly.  

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 4 years, 6 months, and 21 days of active service and that based on the authority and reason for discharge he was assigned the separation program designator (SPD) code of JKA (pattern of misconduct) and an RE code of 3.

9. On 8 January 2010, the Army Discharge Review Board, after consideration of the applicant’s entire record of military service and the issues he presented, determined his discharge was proper and equitable and unanimously voted to deny his request for an upgrade of his discharge and to change his RE code.

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.  

11.  Paragraph 14-3 of this regulation contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be 
inappropriate.  

12.  The SPD/RE Code Cross Reference Table states SPD code JKA has a corresponding RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his discharge and to change his RE code because he did not understand the discharge procedures has been carefully considered.  However, the evidence of record confirms the applicant consulted with legal counsel prior to separation and he was fully advised of the basis for the contemplated separation action, its effects, and of all the rights available to him in connection with the action.  Therefore, there is insufficient evidence to support his claim. 

2.  The applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  Because there is insufficient evidence to change the reason for his discharge (i.e., pattern of misconduct), there is no basis to change his RE code.

4.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  It appears the length and honorable nature of the applicant's overall record of service was the basis for him receiving a GD instead of an under other than honorable conditions discharge that would have normally been issued.  However, it is equally clear his record of misconduct, including the use of illegal drugs, clearly diminished his overall record of service below that meriting a fully honorable discharge.  As a result, there is insufficient new evidence to support amendment of the original Board decision, and there is an insufficient evidentiary basis to support an upgrade of his discharge. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. In regard to the request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number AR201000012035, dated 5 October 2010.  

2.  In regard to the new issue, 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)                                         AR20110014354



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ABCMR Record of Proceedings (cont)                                         AR20110014354



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