BOARD DATE:	31 January 2012

		DOCKET NUMBER:  AR20110014465 


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 correction of items 26 (Separation Code) and item 27 (Reentry Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant states the RE and SPD codes listed on his DD Form 214 are unjust because it was a time of training.  He also states that his service is not properly accounted for on the DD Form 214.  

3.  The applicant provides no documentary evidence in support of his application. 

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 record shows he enlisted in the Army National Guard (ARNG) on 7 April 1993, with a split training option.  It further shows he completed 
2 months and 3 days of active duty service during phase I of his split training from 27 May through 29 July 1993, and 4 months of active duty during phase II of his split training from 8 June through 7 October 1994.  

3.  The record shows the applicant received formal counseling for conduct and duty related infractions on 4 and 5 August 1994.  He also accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 
16 September 1994 for stealing, wrongfully selling property of the U.S. Government, and disobeying the lawful command of the brigade commander by drinking alcoholic beverages while under the age of 21.  

4.  The applicant's unit commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, by reason of misconduct based on his inability or unwillingness to adjust to the military way of life and to show responsibility for his acts.  The commander indicated the applicant had caused numerous disciplinary problems since his arrival in the unit.  

5.  The applicant acknowledged receipt of the notification, waived his right to counsel, and elected not to submit statements in his own behalf contingent on receiving a general discharge under honorable conditions.

6.  The separation authority's approval document is not in the available record.  The record does contain a properly constituted DD Form 214 that contains the authority and reason for the applicant’s separation.  The applicant was released from active duty and discharged as a Reserve of the Army on 7 October 1994, after completing 4 months of active service.  

7.  The applicant’s 7 October 1994 DD Form 214 contains the following entries:  

* Item 11 (Specialty Number and Title), “None”
* Item 12c ((Net Active Service This Period), “00  04  00”
* Item 12e (Total Prior Inactive Service), “00  10  29”
* Item 24 (Character of Service), “Under Honorable Conditions”
* Item 25 (Separation Authority), “AR 635-200, PARA 14-12b”
* Item 26 (Separation Code), “JKA”
* Item 27 (Reentry Code), “RE-3”
* Item 28 (Narrative Reason for Separation), “Misconduct”



8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:  

   a.  Paragraph 3-9 provides guidance on “Uncharacterized” entry level separations (ELS).  It states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when a characterization of under other than honorable conditions (UOTHC) is authorized under the reason for separation and is warranted by the circumstances of the case;

	b.  Paragarph 11-3 provides the separation policy for members separating by reason of entry level performance and conduct.  It states, in pertinent part, nothing in the chapter precludes separation under other provisions of this regulation when such separation is warranted.  It does indicate members will be processed under chapter 11 if in ELS if separation is warranted by reason of misconduct, minor disciplinary infractions (Paragraph 14-12a).  

   c.  Paragraph 14-3 provides guidance on characterization of service for members separating under the provisions of chapter 14 for misconduct and states, in pertinent part, if characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status service will be described as uncharacterized.

9.  Army Regulation 635-5-1 (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 SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct).  

10.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct) with the SPD code of JKA.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the SPD and RE codes assigned at the time of separation has been carefully considered.  However, there is insufficient evidence to support this claim.  



2.  The record confirms he was separated by reason of misconduct (pattern of misconduct) and he was appropriately assigned an SPD code of JKA and RE-3 code based on the authority and reason for his separation.  Absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting the requested relief.

3.  The evidence of record shows the applicant’s DD Form 214 contains administrative errors in items 12e and 24 that do not require action by the Board.  The record confirms the applicant completed a total of 11 months and 28 days of prior inactive military service in the ARNG and that item 12e incorrectly lists completion of 10 months and 29 days of prior inactive military service.  The record also shows the applicant was in an ELS status and the circumstances of his case did not warrant a UOTHC discharge as evidenced by the characterization of service, recommendations of the chain of command, and the applicant’s waiver of rights.  

3.  Since Board action is not required to correct these errors, it would 
be appropriate for the Army Review Boards Agency (ARBA) Case 
Management Division (CMD) to administratively correct these errors that 
do not require Board action as outlined by the Board in paragraph 2 of the 
BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.



2.  The Board determined that an administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by amending his DD Form 214 as follows:

   a.  Item 12e – deleting the current entry and adding the entry “00  11  28”; and 
   
   b.  Item 24 – deleting the current entry and adding the entry “Uncharacterized.”
   



      _______ _  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)                                         AR20110014465



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ABCMR Record of Proceedings (cont)                                         AR20110014465



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