IN THE CASE OF:	  

		BOARD DATE:  29 October 2013

		DOCKET NUMBER:  AR20130002000 


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 reconsideration of an earlier request to correct his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 October 1992 by removing from:

* Item 25 (Separation Authority) the entry "Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c"
* Item 26 (Separation Code) the entry "JKQ"
* Item 27 (Reentry (RE) Code) the entry "RE-3C"
* Item 28 (Narrative Reason for Separation) the entry "Misconduct – Commission of a Serious Offense – Absent Without Leave (AWOL)"
* In effect, item 29 (Dates of Time Lost During This Period) the entry "Under [Title 10] U.S. Code (USC) [Section] 972  19910517–19910728"

2.  The applicant states he found various discrepancies and inaccurate facts and issues in the denial letter (Army Board for Correction of Military Records (ABCMR) Record of Proceedings) and points out the following:
 
* an incorrect unit was cited
* he had a sick slip for quarters, but his chain of command refused to correct the record to show he was not AWOL
* he did not receive an assignment he requested
* his company commander knew he was on convalescent leave, but placed a flagging action against him


* he attempted to correct his military records before time elapsed
* he requested correction of his military records in October 2009, but his records were missing
* during his military career he was awarded numerous military occupational specialties (MOSs)
* his chain of command initiated the AWOL charges against him without knowing the facts
* his divorce paperwork was initiated in February 1986 and finalized in March 1987
* he questions his duty status changes
* the civil charges are not available because there were none
* he was never counseled by anyone concerning an other than honorable discharge
* he never pled guilty to the charge of assault with a deadly weapon to commit serious injury
* medical documentation shows he had to be admitted in a civilian hospital for treatment of seizure attacks
* he was never given any type of memorandum that superseded all previous documents related to his earlier separation action
* he never spoke to the battalion commander or anyone else concerning discharge actions against him
* official documents show he requested appearance before an administrative board
* his chain of command illegally initiated false documents and adverse actions against him
* he was never AWOL as charged
* he was never convicted of a serious crime

3.  The applicant provides 30 attachments outlined in his request for reconsideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120010705, on 27 November 2012.

2.  The applicant's arguments are new evidence that warrants consideration by the Board.


3.  He enlisted in the U.S. Army Reserve (USAR) on 20 May 1978.  He completed his training and he was awarded military occupational specialty 91B (medical specialist) and later MOS 76Y (unit supply specialist).  On 
30 September 1989, he entered active duty in an Active Guard Reserve (AGR) status.

4.  On 14 March 1990, his duty status changed from ordinary leave to civil confinement.  Records show he was charged with assault with a deadly weapon inflicting serious injury and reckless operation.  He pled guilty to the charges and he was sentenced to imprisonment for 5 years, but the execution of the sentence was suspended and he was sentenced to a 5-year unsupervised probation after having served 30 days in jail.  He returned to military control on 29 March 1990.

5.  On 23 March 1990, agents of the U.S. Army Criminal Investigation Command (CID), Fort Hamilton, NY, investigated the applicant for bigamy, larceny, and making a false official statement.  The investigation revealed the applicant, while still legally married, entered into a common law marriage with another woman and documented this marriage with a notarized statement attesting to the fact that he fulfilled the requirements of common law marriage in South Carolina.  He also obtained a document of an unknown origin to further record his spouse and implied they had been married by a minister in a bonafide marriage ceremony.  He presented this document to the Fort Hamilton Housing Office and between November 1989 and July 1990 he fraudulently obtained Government housing service and used the document to obtain a military family member identification card for this spouse. 

6.  On 22 August 1990, his duty status was again changed from ordinary leave to civil confinement.

7.  On 14 March 1991, his duty status was changed from duty to AWOL.
 
8.  A DD Form 689 (Individual Sick Slip), dated 15 March 1991, shows he was recommended for rest in quarters for 24 hours. 

9.  On 19 March 1991, his duty status was changed from ordinary leave to civil confinement.  A subsequent Criminal Incident Report indicated a police patrol observed a suspicious parked car when suddenly an individual exited the car and yelled "he’s got a gun."  The officer drew his revolver and ordered all passengers to place their hands on the trunk.  All passengers, including the applicant, denied any knowledge of where the gun came from.  He was arrested, processed, and released to military officials. 


10.  On 23 April 1991, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200, chapter 14 for misconduct - commission of a serious offense.

11.  On 23 April 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He 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 on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by and personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

12.  His duty status was changed from present for duty to AWOL effective 
17 May 1991.

13.  His duty status was changed from AWOL to present for duty effective 29 July 1991.

14.  On an unknown date, a military attorney reviewed the separation packet and found it legally insufficient.  He recommended re-initiation of the separation action under the proper paragraph of Army Regulation 635-200.  He also recommended the chain of command make a recommendation with respect to the characterization of the applicant's service.  As such, no separation board convened and no convening order was signed.

15.  On 4 February 1992, in an action that superseded the previous recommendation, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200, paragraph 14-12(c) for misconduct - commission of a serious offense.  Specifically, he listed the reasons for the proposed action as follows and he recommended an under other than honorable conditions discharge:

* Conviction by a state court for assault with a deadly weapon to commit serious injury
* AWOL for more than 30 days from 17 May to 29 July 1991
* False official statement in claiming he was married to another woman and producing a fraudulent certificate of marriage


16.  On 20 February 1992, the applicant was provided with a memorandum that superseded all previous documents related to his earlier separation action.  The memorandum also included a waiver statement.  The applicant was given 7 days to respond and return the statement.  The acknowledgement memorandum clearly stated failure to return it within 7 days of receipt would constitute a waiver of his rights.  He did not respond.

17.  On 16 April 1992, the Commanding General, 77th USAR Command, Fort Totten, NY strongly recommended the applicant's discharge with an under other than honorable conditions discharge.

18.  On 5 August 1992, the applicant was again personally informed by his battalion commander of the requirement to execute a waiver statement within 
7 days.  There is no indication he complied with the directive.

19.  On 22 September 1992, the separation authority approved the applicant's discharge, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c by reason of misconduct - commission of a serious offense, and directed the applicant be given an under other than honorable conditions discharge and be reduced to the lowest enlisted grade or private (E-1).  Accordingly, the applicant was discharged on 2 October 1992.

20.  On 30 June 2003, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 8 October 2004, the ADRB upgraded his discharge to a general discharge.  However, the ADRB determined the authority and reason for separation were valid; therefore, no change was warranted.  As a result, the applicant's DD Form 214 for the period ending
2 October 1992 was reissued to reflect his general discharge.  Items 25 through 29 of his DD Form 214 remained unchanged.

21.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Abuse of illegal drugs is serious misconduct.  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.  


22.  Army Regulation 635-5-1 (Separation Program Designator (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 JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

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

	a.  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.

	b.  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 for enlistment unless a waiver is granted.

	c.  RE-3C at the time applied to Soldiers who completed over 4 months of service who did not meet the basic eligibility pay grade requirements or who had been denied reenlistment under the qualitative retention process.  They were ineligible for enlistment unless a waiver was granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he had a sick slip for quarters, but his chain of command refused to correct the record to show he was not AWOL.  Records show his duty status was changed to AWOL on 14 March 1991.  His DD Form 689 shows he was recommended for rest in quarters for 24 hours on 15 March 1991.  His records do not show he was reported as AWOL on 15 or 16 March 1991. 

2.  Although he contends he was never AWOL as charged, evidence shows he was AWOL from 17 May 1991 to 28 July 1991 which is properly shown in item 29 of his DD Form 214.


3.  His contention he was never convicted of a serious crime was noted.  However, evidence shows in 1990 he pled guilty in a civilian court to assault with a deadly weapon inflicting serious injury and reckless operation.  He was sentenced to imprisonment for 5 years, but the execution of the sentence was suspended and he was sentenced to a 5-year unsupervised probation after having served 30 days in jail.

4.  His remaining contentions and supporting documentation were carefully considered.  However, the separation authority, separation code, RE code, and narrative reason for separation used in the applicant's case are correct and were applied in accordance with the applicable regulations.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20120010705, dated 27 November 2012.



      _______ _  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)                                         AR20130002000



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ABCMR Record of Proceedings (cont)                                         AR20130002000



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