BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120000882 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) by:

	a.  deleting "3" from item 27 (Reentry Code) and adding "1"; and

	b.  deleting "Misconduct" from item 28 (Narrative Reason for Separation) and adding "Secretarial Authority."

2.  The applicant states the basis of his request is the recommendation on page 3 of his Army Discharge Review Board (ADRB) Case Report and Directive.  He further states he has received a Bachelors of Science degree in civil engineering, but he is unable to gain employment due to his discharge.  He is also unable to reenlist in the Reserve due to his Reentry Eligibility (RE) code of "3."

3.  The applicant provides page 3 of his ADRB Case Report and Directive.

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.  Following an honorable period of service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 3 September 1997.  The highest rank/grade he attained while serving on active duty was specialist /E-4.

3.  His record contains an Investigation Bureau Supplementary/Follow Up Report rendered by the Bexar County Sheriff's Office, San Antonio, TX, which shows he was charged with the offense of insurance fraud.  This charge was based upon an investigation that determined he conspired to fake the theft of his automobile and then filed a falsified police report with the intent of being paid the value of the "stolen" automobile ($16,405.40) by his insurance company.  The date of the incident was 16 November 2001.

4.  On 19 June 2002, the applicant's unit commander notified him he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct for wrongful use of a controlled substance.  He was advised of his rights and the impact of the discharge.  He acknowledged receipt of the notification and opted to retain his own consulting counsel.

5.  On 20 August 2002, the company commander recommended that the applicant be separated from the service based on misconduct, commission of a serious offense, conspiracy and insurance fraud.  The company commander noted the fact that the applicant had no record of previous court-martial convictions or nonjudicial punishment.  The applicant's intermediate commanders recommended approval of his separation with the issuance of an Under Other Than Honorable Conditions Discharge Certificate with a corresponding characterization of service.

6.  On 24 September 2002, the applicant's civilian counsel sent a letter to his company commander, wherein he contended there were very compelling reasons why the commander should reconsider pursuing any adverse administrative elimination actions against the applicant.  His counsel stated some of the reasons were essentially as follows:

	a.  The applicant had invested a considerable number of years in the Army and the Army had expended considerable expense in training him to perform proficiently in his military occupational specialty.  To administratively separate him prematurely would be a loss of valuable training dollars.

	b.  The applicant had taken timely steps to acknowledge his wrongdoing with respect to the pending charges against him in the State Court such as:  waiving his right to a grand jury, agreeing to proceed on an information versus indictment, agreeing to make full and complete restitution to the insurance company, and entering a plea of "guilty" to the underlying offense.

	c.  The State’s prosecuting attorney agreed to recommend to the trial judge that the applicant be granted "deferred adjudication" upon acceptance of his plea.  In other words, if the applicant could abide by the terms and conditions of his probationary period, the result could be that he would have no formal conviction on his record.

	d.  In addition to full restitution to the insurance company for his misdeeds, the applicant was also responsible for paying a $1,000 fine and performing 
300 hours of community service.  Together with all of the other collateral consequences of a criminal proceeding, he had to pay a heavy price for his misconduct.

	e.  The State's trial judge determined that under the unique circumstances of this case the applicant was a suitable candidate for a personal recognizance bond.  Additionally, the judge stated that inasmuch as the applicant was prepared to make full restitution to the insurance company the traditional presentence investigation could be waived in this case.

7.  On 8 October 2002, after consulting with counsel, the applicant submitted a request to voluntarily waive consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than a General Discharge Certificate. He opted not to submit statements in his own behalf.  He attested he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge and he would be ineligible to apply for enlist in the Army for a period of 2 years.

8.  The applicant's company commander recommended approval of the conditional waiver and that he be separated with a General Discharge Certificate, but his intermediate commander recommend disapproval of the waiver and that he be separated with an under other than honorable conditions discharge.  On 
17 October 2002, the separation authority disapproved his waiver request and referred his case for consideration by an administrative separation board to determine whether he should be separated from the service for commission of a serious offense. 

9.  The applicant appeared in person before a board of officers who considered his testimony and all of the evidence presented in his case in order to determine whether he should be separated for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c.  As a result, the board determined the applicant was unacceptable for further retention in the military service because of commission of a serious offense and recommended he be discharged from the service with the issuance of a general discharge.

10.  On 25 March 2003, the separation authority approved the board's findings and recommendations and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, and issued a general discharge.

11.  On 31 March 2003, the applicant was discharged accordingly.  His original DD Form 214 shows:

* his service was characterized as "Under Honorable Conditions (General)"
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* a separation program designator (SPD) code of "JKQ"
* an RE Code of "3"
* the narrative reason for separation as "Misconduct"

12.  On 4 November 2005, the applicant applied to the ADRB for an upgrade of his general discharge to a fully honorable discharge.  His ADRB - Case Report and Directive shows in:

	a.  Item VIc (Response to Issues, Recommendation and Rationale) that the analyst determined the applicant's discharge was inequitable and recommended that the ADRB vote to change his characterization of service to fully honorable and to change the narrative reason for discharge to "Secretarial Authority."  In addition, the analyst recommended that the RE Code be changed to "1."

	b.  VIII (Board Decision) that the ADRB determined the applicant's characterization of service was inequitable and should be changed.  They further determined that there should be no change to the narrative reason for separation.

	c.  Item IX (Board Discussion, Determination, and Recommendation) that after carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and considering the analyst's recommendation and rationale, the ADRB determined that the characterization of service was too harsh based on the applicant's length and quality of service and his post-service accomplishments.

	d.  Item X (Board Action Directed) shows the President, ADRB directed the applicant's characterization of service be changed to "Honorable" and that there would be no change to the narrative reason for separation.

13.  On 7 June 2006, the President, ADRB notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB had determined that relief was warranted in his case.

14.  On 11 August 2006, the Chief, Support Division, Army Review Boards Agency, St. Louis, MO, informed the applicant that after reviewing the findings and conclusions of the ADRB, the Secretary of the Army directed that he be informed his characterization of service had been changed to "Honorable."  As a result, his original DD Form 214 was voided and he was issued an Honorable Discharge Certificate and a revised DD Form 214 which shows:

* his characterization of service was upgraded on 7 June 2006
* his service was characterized as "Honorable"
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* his SPD code was "JKQ"
* his RE Code was "3"
* his narrative reason for separation was "Misconduct"

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct which includes drug abuse and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration of term of service.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

16.  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 the SPD code of "JKQ" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense).

17.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that the RE code of "3" was the proper code to assign to members separated with an SPD code of "JKQ."

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  An RE code of 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  An RE code of 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the narrative reason for separation and RE code on his DD Form 214 should be changed based on an ADRB decision is duly noted.  However, the evidence clearly shows the members of the ADRB carefully examined the applicant's record of service, heard his testimony, and considered the analyst's recommendation and rationale.  Although the members of the ADRB determined the applicant's characterization of service warranted upgrading to fully honorable, they also determined there should be no change to the narrative reason for separation or RE code, which were properly rendered in accordance with the statutes and regulations in effect at the time.

2.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's revised discharge accurately reflects his overall record of service.

3.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.

4.  Based on his record of indiscipline, he was discharged for the appropriate reason and assigned the appropriate RE Code.  Therefore, he 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)                                         AR20120000882



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000882



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1