IN THE CASE OF:	  

		BOARD DATE:  2 October 2012

		DOCKET NUMBER:  AR20120005797 


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 an upgrade of his general discharge.  He also requests an upgrade of his Reentry (RE) Code from RE-3 to a more favorable code. 

2.  The applicant states:

* he was young and made mistakes
* he would like an opportunity to redeem himself
* he had no previous offenses

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 records show he was born on 3 April 1985 and enlisted in the Regular Army at 18 years of age on 3 April 2003.  He held military occupational specialty 11B (Infantryman) and he served in Kuwait/Iraq from 15 November 2003 to 2 November 2004.  

3.  His records show he was awarded or authorized the Purple Heart, National Defense Service Medal, Iraq Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and two overseas service bars.

4.  On 17 February 2005, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 22 March 2005, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between on or about 18 January 2005 and 17 February 2005.

6.  On 27 April 2005, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense.  Specifically, he cited the applicant's having wrongfully used an illegal drug.  He recommended a general discharge under honorable conditions.

7.  On 27 April 2005, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect, the possible effects of this discharge, and of the procedures and rights available to him.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a general discharge.  He elected not to submit a statement in his own behalf.

8.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

9.  His intermediate commander recommended approval with the issuance of a general characterization of service. 

10.  On 11 June 2005, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – commission of a serious offense – and directed his service be characterized as general under honorable conditions.  

11.  On 15 July 2005, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to military control on 2 August 2005. 

12.  His DD Form 214 confirms he was discharged on 2 August 2005 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions by reason of misconduct – commission of a serious offense.  This form shows he completed 2 years, 3 months, and 11 days of creditable active service during the period under review and he had 18 days of lost time.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – the entry "JKQ"
* item 27 (Reentry Code) – the entry "3"

13.  On 20 December 2007, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

15.  Army Regulation 635-200, 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.
16.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Table 3-1 included a list of Regular Army RE codes.

* An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JKQ" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – commission of a serious offense.

18.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows that SPD code "JKQ" has a corresponding RE code "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense by wrongfully using illegal drugs.  Accordingly, his chain of command initiated separation action against him.  He consulted with legal counsel and he was advised of the reason for separation, type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The applicant was 18 years of age at the time of his enlistment and 20 years of age at the time of his offense.  However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

4.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is an insufficient evidentiary basis for upgrading his discharge to a fully honorable discharge. 

5.  He was discharged on 2 August 2005 under the provisions of chapter 14 of Army Regulation 635-200 for committing a serious offense with a general characterization of service.  His RE code was assigned based on his discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct – commission of a serious offense.  Absent the misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his misconduct.  The appropriate RE code associated with this type of discharge is RE-3 which is correctly shown on his DD Form 214.  Therefore, he is not entitled to an upgrade of his RE code. 

6.  His desire to again join military service and redeem himself is noted.  However, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter the military, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing reentry waivers.

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)                                         AR20120005797





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ABCMR Record of Proceedings (cont)                                         AR20120005797



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