IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110015823 


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 Reentry Eligibility (RE) code be changed from 
“NA” to a favorable RE code to allow him to reenlist. 

2.  He states:

	a.  he does not know whether his record is in error, but he was discharged after he criticized some policies involving the previous administration.

	b.  he doesn’t believe his political expressions as a young officer should preclude him from future military service even though he concedes it was inappropriate for him to do so in the manner in which he did.

	c.  he will serve honorably and with the utmost professionalism if his request is granted.  He feels compelled to redeem himself by reenlisting and deploying.  

3.  He provides a 5-page self-authored statement.  

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 was appointed as a Reserve commissioned officer on 18 July 2006 with a concurrent call to active duty.  

3.  He was released from active duty on 5 October 2007 under the provisions of Army Regulation 600-8-24 (Officers Transfers and Discharges), paragraphs 4-2a and 4-24a(2) by reason of unacceptable conduct.  At the time of his discharge, he had completed 1 year, 2 months, and 18 days of active military service.  

4.  Item 27 (RE code) of his DD Form 214 shows the entry “NA.”  He was issued a Separation Program Designator (SPD) code of “KNC” (Unacceptable Conduct).  

5.  He provided a 5-page self-authored statement in which he gave a brief history of his military career and outlined his motivations for joining the military and engaging in various pursuits in his post-military career.  In summary, he stated:

	a.  he accepted an appointment in the U.S. Air Force Academy and entered basic cadet training in June 2002.  He later discovered his passion for understanding the complex political and economic problems plaguing the Middle East which led him to pursue a career in Political Science and Middle East Studies with a minor in Arabic.  He was cross-commissioned into the Army while he was in his third year at the Academy.  

	b.  he was concerned about the controversial nature of the pre-war intelligence process in Iraq and he spoke with a few of his peers about his concerns.  He acknowledged he understood that a military officer’s responsibility was to execute the mission, not to voice questions on the basis for it.

	c.  he became deeply demoralized by the thought that he might be ordered to participate in or support intelligence activities which violated the Geneva Conventions and he feared the potential moral and legal consequences of this.  These dilemmas had a negative effect on his morale.  He referenced incidents which supported his concerns, to include quotes from the Los Angeles Times and media reports.  

	d.  he spoke out his views with some Air Force friends and fellow junior Military Intelligence officers-in-training.  One of his peers at Fort Huachuca, AZ became concerned with his views and forwarded his correspondence to their company commander.  He believed his correspondence remained within Army and Department of Defense regulations, but it became apparent the substance and tone of his emails troubled his company commander, who brought them to the attention of his battalion commander.

	e.  his battalion commander ordered a U.S. Army Criminal Investigation Command (CID) investigation into his alleged violation of the Uniform Code of Military Justice, Articles 88 (contempt towards officials), Article 92 (disobeying a lawful order), Article 133 (conduct unbecoming an officer), and Article 134 (conduct prejudicial to good order and discipline).  At the completion of the investigation, his chain of command decided to handle his case administratively rather than attempt to pursue a court-martial case against him.  He received an honorable discharge on 10 October 2007 despite his appeal to the commanding general to remain in the Army.  

	f.  After he was discharged he: 

   (1)  advocated for U.S. military withdrawal from Iraq as a volunteer and as 
a staff member of Iraq Veterans Against the War.
   
   (2)  advocated for adequate provisions of mental health resources to active duty troops and veterans.  
   
   (3)  accepted an energy efficiency training opportunity with Veterans 
Green Jobs in southwest Colorado where he provided energy audits to low-income residents throughout the region.

		(4)  accepted an Energy Program Associate position with Global Exchange focused on human rights abuses in the internal oil and gas industry.  

		(5)  worked pro bono as an Energy Policy Advocate for the Open Fuel Standard Coalition.

6.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The regulation states RE codes are not applicable to officers, United States Military Academy (USMA) cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in support of his request for correction of his RE code are acknowledged.  However, the evidence of record does not indicate an error or injustice exists in this case.   

2.  The evidence of record shows he was honorably discharged under the provisions of Army Regulation 600-8-24, paragraphs 4-2a and 4-24a(2).   His DD Form 214 shows the entry "NA" in item 27.  

3.  Based on Army Regulation 635-5, RE codes are not applicable to officers, United States Military Academy (USMA) cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause.  

4.  Therefore, his DD Form 214 properly reflects the appropriate entry and there is no basis for correction of his records.  

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)                                         AR20110015823



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ABCMR Record of Proceedings (cont)                                         AR20110015823



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