IN THE CASE OF:	  

		BOARD DATE:	  30 August 2012

		DOCKET NUMBER:  AR20120003544 


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:

* upgrading the characterization of his service
* changing his separation program designator (SPD) code
* changing his reentry eligibility (RE) code

2.  The applicant states his DD Form 214 indicates he was discharged for a pattern of financial misconduct.  He asserts there is no evidence in his Military Personnel Records Jacket to support such a scurrilous accusation.  He surmises his DD Form 214 is an attempt by someone to cast aspersions on his record and bring shame and embarrassment to a proud Soldier who served more than 10 years with the highest of standards.  He states his former chain of command was resentful of him and the fact that they could not view his previous special forces training records.  The DD Form 214 he received was their attempt to lash out at him.

3.  The applicant provides no additional evidence.

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 served as a Regular Army Soldier from 22 January 1981 to 18 April 1991.  He attained the rank of staff sergeant and he held military occupational specialty  67T (UH-60 Helicopter Repairer).

3.  On 4 April 1991, the applicant's commander initiated administrative separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  The reasons cited were:

* 19 March 1990 – bar to reenlistment imposed
* 17 March 1990 – counseled for issuing bad checks
* 5 October 1990 – counseled for indebtedness
* 12 October 1990 – counseled for reported spousal abuse and indebtedness
* 15 November 1990 – counseled for absence from duty section
* 16 November 1990 – counseled for absence from duty section
* 16 November 1990 – counseled on letter of indebtedness from credit union
* 26 November 1990 – counseled for being late to formation
* 27 November 1990 – counseled for letter of indebtedness
* 3 December 1990 – counseled for indebtedness and issuing bad checks
* 3 December 1990 – counseled for letter of indebtedness
* 22 February 1991 – counseled for letter of indebtedness from Eisenhower Bank

4.  In addition to the above, as a staff sergeant the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* 10 January 1990	 – violation of Articles 92 and 86
* 8 March 1990 – violation of Articles 92 and 86

5.  The applicant acknowledged notification of his commander's intent to separate him and of the rights available to him.  He consulted with legal counsel on 5 April 1991.  Following consultation, he waived his right to a hearing before a board of officers and he elected not to make a statement in his own behalf.

6.  On 8 April 1991, the administrative separation packet was forwarded through the chain of command to the approving authority for a decision.  On 9 April 1991, the approving authority approved the applicant's separation under the provisions of chapter 14, Army Regulation 635-200.

7.  On 18 April 1991, the applicant received a general discharge under honorable conditions under the provisions of paragraph 14-2b, Army Regulation 635-200, for "misconduct – pattern of misconduct."  He was given an SPD code of "JKM" and an RE code of "3."

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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.  

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JKM" is "misconduct – pattern of misconduct" and the regulatory authority is Army Regulation 635-200, chapter 14.

10.  Army Regulation 635-200 states that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of RE codes.

	a.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

	b.  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.

10.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers given an SPD code of "JKM" will be given an RE code of "3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request was carefully considered; however, contrary to his assertions, his record shows a complete disregard of Soldier values, particularly as a noncommissioned officer.

2.  The applicant's record contains an administrative separation packet showing he:

* was deeply in debt
* issued checks which were returned for insufficient funds
* he failed to report for duty and missed formations
* he was counseled for spousal abuse

3.  Such conduct is not that expected of a noncommissioned officer and leader of Soldiers.

4.  The applicant's DD Form 214 is correct in all respects; his SPD and RE codes reflect the reason and authority for his separation.

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 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)                                         AR20120003544



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ABCMR Record of Proceedings (cont)                                         AR20120003544



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