IN THE CASE OF:	

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130009743 


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, in effect, the following:

* an upgrade of his under honorable conditions (general) discharge
* an upgrade of the separation code listed in item 26 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), from "JKB" to an unspecified separation code
* an upgrade of the reentry (RE) code listing in item 27 (Reentry Code) of his DD Form 214, from "3" to an unspecified RE code  

2.  The applicant states the Kitsap County District Court, in the State of Washington, ordered the verdict in his criminal case set aside and vacated the record pertaining to the conviction that resulted in his discharge from the Army.

3.  The applicant provides the Kitsap County District Court order that vacated his conviction and a copy of his DD Form 214.

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.  On 20 April 1998, the applicant enlisted in the Washington Army National Guard (WAARNG).  On 11 August 1998, he entered active duty for the purpose of completing his initial entry training.  On 18 March 1999, upon the completion of his initial entry training, he was awarded military occupational specialty 63H (Track Vehicle Repairer) and he was honorably released from active duty to the control of the WAARNG.

3.  Orders 316-689, issued by the WAARNG on 12 November 2003, ordered him to active duty in support of Operation Iraqi Freedom, for a period not to exceed 545 days, effective 15 November 2003.

4.  Order 319-59, issued by the WAARNG on 15 November 2003, promoted him to the rank/grade of sergeant/E-5.

5.  On 24 June 2004, due to unknown facts and circumstances, he was discharged from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, by reason of misconduct.  The DD Form 214 he was issued shows:

* Item 24 (Character of Service) he received an under honorable conditions (general) discharge
* Item 26 his separation code as "JKB"
* Item 27 his RE code as "3"

6.  On 29 May 2009, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

7.  He provides the Kitsap County District Court order of 22 June 2012 that vacated his conviction.  This document states:

   a. The offense for which the applicant (referred to throughout this paragraph as the "defendant") was convicted involves domestic violence.

   b. The defendant provided the prosecuting attorney's office that prosecuted the offense with written notice of his petition to vacate the record of conviction.

   c. The defendant has not been convicted of any other domestic violence offense arising out of any other incident.
   d. It has been at least 5 years since the defendant completed the terms and conditions of the sentence, including restitution/legal financial obligations and successful completion of any treatment ordered.

   e. The defendant has not been convicted of any new crime in the State of Washington, another state, or Federal court since he was convicted in the matter for which he was convicted.

f. The defendant has never had the record of another conviction vacated.

   g. The defendant is not currently, and has not been, restrained within the last 5 years by a domestic violence protection order, a no-contact order, an anti-harassment protection order, or a civil restraining order which restrains one party from contacting the other party.

   h. The defendant has not been convicted of any other domestic violence offense arising out of any other incident and he has not been convicted of a new crime since the date of conviction in this matter based upon the criminal history check of certain State and Federal records.

i. The motion for order vacating conviction records is granted.

j. The guilty verdict for the offense is set aside.

   k. The charging document is dismissed and the judgment and sentence is vacated for the convicted offense.

   l. The defendant shall be released from all penalties and disabilities resulting from the offense and the conviction of that offense shall not be included in the defendant's criminal history for purposes of determining a sentence in any subsequent conviction.  However, the conviction may be used in a later criminal prosecution.

   m. For all purposes, the defendant may state that he or she has never been convicted of the offense.

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

	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.  Chapter 14 establishes policy and prescribes procedures for separating Soldiers for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct an under honorable conditions (general) discharge if such is merited by the Soldier’s overall record.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states, in pertinent part, prior to discharge or release from active duty, individuals will be assigned reentry codes, based on their service records or the reason for discharge.  Chapter 3 of the regulation in effect at the time provided the basic eligibility for prior service applicants for enlistment and included a list of Armed Forces RE codes.  The RE code of "3" applied to persons not considered fully-qualified for reentry or continuous service at the time of separation; however, the disqualification was waivable.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), states that separation codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  Table 2-3 (SPD Codes Applicable to Enlisted Personnel) notes that "JKB" is one of the appropriate separation codes for individuals separated for misconduct.

11.  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 in effect at the time of his discharge shows the SPD code and a corresponding RE code.  The SPD code of "JKB" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge characterization, separation code, and RE code should be upgraded as a result of the guilty verdict in his conviction (which resulted in his discharge from the Army) being set aside and the record of his conviction being vacated.  In support of his contention, he provides the Kitsap County District Court order of 22 June 2012 that vacated his conviction.

2.  The applicant's record does not detail the facts and circumstances that led to his discharge from the Army.  However, based on a review of his DD Form 214 and the documents submitted in this case, it is reasonable to conclude his discharge resulted from a civil conviction related to domestic violence.

3.  The Kitsap County District Court order of 22 June 2012 vacated his conviction; however, it did not label him "innocent."  Similarly, it did not erase the facts that led to his conviction and subsequent discharge.  The applicant has not provided any evidence or argument that shows his separation processing was not accomplished in compliance with applicable regulations, or that shows his separation processing resulted in procedural errors that jeopardized his rights.

4.  He demonstrated he could not meet acceptable standards required of enlisted personnel, as evidenced by his arrest and conviction.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  

5.  He has provided no evidence to show that the separation code and RE code issued to him at the time of his discharge were improper, or inequitable, or should be changed now.  His separation code of "JKB" is consistent with the reason for his separation "misconduct" and the RE code of "3" is consistent with the separation code; therefore, the applicant is not entitled to an upgrade of either his separation code or his RE code.

6.  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 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20130009743



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