BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130003062 


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 under honorable conditions to an honorable discharge and correction of his reentry eligibility (RE) code to RE-1.

2.  He states:

	a.  He was 18 years old at the time of his discharge and had just returned from the Middle East.  He got a few traffic violations on base.  Due to downsizing at the time, he was never given a warning other than a verbal reprimand.  He was discharged and didn't know the future impacts this discharge would hold.

	b.  He feels he was never given a real chance or understanding of the consequences for his actions and the proper chain of command of discipline was not followed.

3.  He 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 was born on 14 April 1977 and he enlisted in the Regular Army on 2 December 1994 at 17 years of age.

3.  Between August 1995 and February 1996, he received numerous adverse counseling statements for:

* falling asleep at the wheel during a troop movement commitment causing his vehicle to veer off the road into a ditch
* misusing a physical profile
* misusing a military vehicle
* disregarding a mission and displaying a lackluster attitude
* jumping his chain of command
* writing bad checks to the post exchange
* receiving several speeding tickets and moving violations
* having suspended driving privileges 
* missing formation
* being advised of initiation of separation action
* failing to report to his place of duty at the prescribed time

4.  His service records contain a memorandum, dated 25 October 1995, which indicates he had accumulated 12 traffic points during the 12-month period 1 July 1995 to 1 July 1996.

5.  On or about 27 March 1996, his company commander notified him of his intent to recommend his discharge for misconduct (pattern of misconduct) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  He was advised of his rights.  The company commander cited the reasons for his proposed action as the applicant's failures to report, various traffic violations, and bad checks.  He acknowledged receipt of the proposed separation action.  He consulted with legal counsel and did not submit statements in his own behalf.  He acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He understood that he could encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

6.  On 3 April 1996, the separation authority waived rehabilitative requirements and approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct with his service characterized as general under honorable conditions.

7.  On 15 April 1996 he was discharged under honorable conditions (general).  He completed 1 year, 4 months, and 14 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned a separation program designator (SPD) code of "JKA" and an RE code of "3."

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

9.  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.  An under other than honorable conditions discharge 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.

10.  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 RA, U.S. Army Reserve, and Army National Guard and includes a list of RA RE codes.

	a.  RE-1 applies to Soldiers completing their terms 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.

11.  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 SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct).  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 JKA.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.

2.  His service records show he accumulated 12 traffic points during the 
12-month period 1 July 1995 to 1 July 1996 and received numerous adverse counseling statements for his performance and conduct.

3.  His administrative separation for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

4.  He acknowledged he understood the effects of a discharge under honorable conditions.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

5.  His overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of an honorable discharge.  Although a discharge under other than honorable conditions was normally appropriate for the authority and reason for his discharge, it appears that his chain of command and final approval authority considered his overall record of service, resulting in the issuance of a general discharge under honorable conditions.

6.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants upgrading his general discharge to an honorable.

7.  The evidence of record shows he was assigned a separation code of JKA and an RE code of 3 in accordance with the governing regulation.

8.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on misconduct (pattern of misconduct) and he has not established a basis for changing his reason for discharge.  In view of the foregoing, there is no basis for granting relief in this case.

9.  His service records are void of evidence that shows the RE code issued to him was in error or unjust.  However, his disqualification for reentry is waivable under Army enlistment criteria.  If he still desires to reenter active service, he can contact his local recruiter to determine if he is eligible for a waiver under current Army enlistment criteria.

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)                                         AR20130003062



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ABCMR Record of Proceedings (cont)                                         AR20130003062



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