IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120011104 


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) for the period ending 27 October 1994 to show in item 27 (Reentry Code) a "1" instead of a "3."

2.  The applicant states:

* his separation action was based on one incident without any consideration of the surrounding matters and did not coincide with any other fact
* his separation was an injustice considering the surrounding facts

3.  The applicant provides:

* 4 DD Forms 214
* Memorandum for Record, dated 22 April 2012
* Letter, Request for Enlistment Waiver, Misconduct, dated 31 July 2003
* Certificate of Achievement
* Certificate of Appreciation
* 2 Air Medal Citations
* Memorandum for Record, In-Theater Deployment Cycle Support Validation, dated 1 October 2006
* Air Medal Certificate
* Permanent Order Number 069-121, Headquarters, Maryland Army National Guard, Fifth Regiment Armory, Baltimore, MD, dated 10 March 2009
* 3 Character Reference Letters

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 enlisted in the Regular Army on 1 September 1992.  He completed training and was awarded military occupational specialty 68G (Aircraft Structural Repairer).  

3.  Records show the applicant was counseled for the following:

* on 8 July 1993, for failing to follow orders
* on 14 July 1993, for wearing jewelry exposed on his uniform
* on 27 January 1994, for failure to follow instructions
* on 19 February 1994, for failure to obey a lawful order
* on 9 March 1994, for being absent without leave
* on 30 March 1994, for smoking in an unauthorized area

4.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 12 November 1993, shows the applicant was advised of his rights by a military police for suspected assault.

5.  A U.S. Army Criminal Investigation Command (CID) Report, dated 21 December 1993, established sufficient evidence and probable cause to believe that on 11 November 1993, the applicant:

* struck and kicked a Korean National (taxi driver 1) numerous times in the head and body, resulting in the individual receiving 14 days of medical treatment
* stabbed and kicked a second taxi driver (Korean National) with a knife in the left shoulder, resulting in the individual being hospitalized for 2 days

6.  A Trial Observer Report, Headquarters, U.S. Forces, Korea, dated 2 May 1994, shows:

* the applicant's trial was held in Seoul, Korea on 23 February, 16 March, and 1 April 1994 by a single-judge court
* the applicant testified to the following:

*	on 11 November 1993, he was drinking beer with a friend and the friend's girlfriend
*	he drank about 24 cans of beer from noon until about 2300 hours
*	at about 2300 hours, he flagged a taxi and asked the driver to take him to Sungnam City
*	when the driver refused, he grabbed the driver by the shirt and pulled him out of the car; however, he did not strike or kick him
*	he (applicant) did not remember stabbing the other taxi driver although he was aware that his friends made statements that he struck and kicked the one taxi driver and stabbed the other taxi driver
*	he (applicant) was in the possession of a pocket knife; he usually carried it with him because he used it for work
*	he (applicant) was very remorseful about the incident and paid $1 million Won to one taxi driver and was unable to pay the other taxi driver because he demanded an unreasonable amount of money 

* taxi driver 1 testified to the following:

*	the applicant stopped his taxi and asked him to go to Sungnam
*	he refused and the applicant grabbed him by the neck, pulled him out of his cab, struck him with his fists, and kicked him when he fell on the ground
*	taxi driver 2 tried to stop the applicant
*	he did not see the applicant stab taxi driver 2

* taxi driver 2 testified to the following:

*	he saw the applicant assaulting taxi driver 1 and he tried to stop him
*	the applicant appeared to be heavily drunk
*	while he was struggling with the applicant's friend, the applicant wielded a pocket knife and cut him in the neck area
*	his wound was not very serious and he settled with the applicant for $1 million Won
*	he did not want the applicant punished

* the applicant was found guilty and received a 3-year suspended sentence for 2 years and 6 months
* all procedural and safeguards secured by the U.S. Republic of Korea Status of Forces Agreement were observed and the applicant received a fair trial

7.  On 17 May 1994, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph
14-5 of Army Regulation 635-200 (Enlisted Separations) for a conviction by civil court.  He recommended an under other than honorable conditions discharge.

8.  The applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for commission of a serious offense, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  Additionally, he elected to submit statements on his own behalf.  In his acknowledgement, he indicated he:

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

9.  On 31 May 1994, the applicant submitted a character letter and provided personal statements in support of his retention in lieu of separation.  He expressed his remorse and asked for forgiveness.  He further stated:

* he had never been in trouble before
* he was engaged and needed his job to support his future wife and family
* he was appealing the decision of the Korean court

10.  On 1 June 1994, counsel advised the commander of the faulty belief that discharge was the only appropriate action based on a civilian conviction.  Counsel also requested reconsideration of the decision to initiate separation.

11.  On 21 July 1994, the Appellate Part of the Seoul Criminal District Court affirmed the conviction of the lower court, but reduced the sentence to 1 1/2 years imprisonment, suspended for 2 years.

12.  On 3 August 1994, an administrative separation board/board of officers was appointed to determine whether the applicant's discharge was warranted based on a conviction by a civil court.  The applicant was advised of his Article 31 rights and made an informed decision to waive those rights prior to presenting testimony before the administrative separation board.

13.  On 22 August 1994, the applicant was notified to appear before a board of officers.

14.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 9 September 1994, shows the board of officers recommended the applicant's discharge with an under other than honorable conditions discharge due to the violent nature of his crime and pattern of misconduct.

15.  On 16 September 1994, the applicant provided personal statements in response to the recommendation of the administrative separation board.  He again stated his remorse, indicated he had stopped drinking, expressed his desire to remain in the Army, and requested to meet with the approval authority prior to a final decision.

16.  On 3 October 1994, the applicant's counsel submitted a rebuttal to the recommendation from the board of officers.  Counsel stated:

* the board of officers did not have the authority to discharge the applicant based on a pattern of misconduct
* the board of officers convened on the basis of a civilian conviction
* no notice was given to the applicant based on a "pattern of misconduct" and the counseling statements given to him are legally insufficient  to convene a board of officers for such a purpose
* the convening authority should only consider that portion of the board's findings relating to the civilian conviction in making a determination as to retention or, if discharged, the characterization of service
* the board of officers refused to consider any evidence concerning the ineffective representation by counsel at the Korean hearing
* the board recorder made error by: not forwarding requests for a delay of hearing, voir dire questions to all board members, advising the defense counsel of the existence of a CID report 2 days before the hearing, and calling the substance abuse counselor and clinic director a liar
* the applicant was verbally abused by his supervisors and his time spent with defense counsel was held against him
* the applicant was not represented by military counsel at his trial

17.  On 3 October 1994, the applicant's counsel for his separation advised the staff judge advocate of errors in the summarized transcript of the administrative separation board.  However, the record does not contain a response, if any, from the staff judge advocate.

18.  On 12 October 1994, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-5 of Army Regulation 635-200 by reason of conviction by criminal court and directed the issuance of an under other than honorable conditions discharge.

19.  On 27 October 1994, the applicant was discharged accordingly with an RE code of 3 and separation program designation (SPD) code of "JKB."  The DD Form 214 he was issued at the time shows he completed 2 years, 1 month, and 27 days of creditable active military service.  

20.  On 13 May 2005, the applicant enlisted in the Army National Guard (ARNG).   He entered active duty on 25 August 2005 and he was honorably released from active duty on 29 November 2006 for completion on required active service.

21. The applicant provides character reference letters, certificates of achievement and appreciation, and record extracts of documents covering a subsequent enlistment in the ARNG.

22.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

23.  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 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 was 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.

   a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Paragraph 14-5 states a Soldier may be considered for discharge when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty.

24.  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

25.  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 the SPD code of "JKB" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change of his RE code of 3 to an RE code of 1 was carefully considered.

2.  The applicant's record shows he was convicted by civil authorities with offenses punishable under the UCMJ with a punitive discharge.

3.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  His separation code, RE code, and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  The underlying reason for his discharge was his conviction by a civil court.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate separation code associated with this discharge is "JKB" which is correctly shown on his DD Form 214.

5.  An SPD code of "JKB" has a corresponding RE code of 3.  Therefore, the RE code of 3 is the appropriate code.  It is correctly listed on his DD Form 214 and there is no reason to change it. 

6.  In view of the foregoing evidence and after a comprehensive review of his case, the applicant failed to provide convincing evidence that warrant a change of his DD Form 214.  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)                                         AR20120011104



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ABCMR Record of Proceedings (cont)                                         AR20120011104



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