IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020977 


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 from Active Duty) to change his narrative reason for separation and/or his Reentry Eligibility (RE) code to allow for his reentry into the Army National Guard (ARNG).

2.  The applicant states:

   a.  Due to the minor nature of his offenses and the fact that his unit did not meet the rehabilitative transfer requirements for separation, he was not given a proper rehabilitative transfer.  He was transferred between platoons and never left the battalion.  He verbally requested transfer out of his unit or the 82nd Airborne Division.  His platoon sergeant told the acting first sergeant that the applicant was "not going anywhere."  

   b.  He believes that his administrative separation was unjust and did not fit the crime in accordance with paragraph 1-16b(2) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) "other than trainees."  

3.  The applicant provides his Army Discharge Review Board (ADRB) Case Report and Directive with personal notes detailing what he believes to be unjust and what he believes were mitigating circumstances.




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 (RA) on 30 September 1990.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  Evidence indicates he served in Iraq for the periods 17 March 2004 to 26 March 2005; 4 October 2006 to 8 December 2007; and 15 December 2008 to 15 December 2009.  He was promoted to the rank/grade of sergeant/E-5 on 1 February 2010.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 18 June 2010, for being derelict in performance of duty (Company Grade)
* 29 June 2010, for being derelict in performance of duty (Field Grade)
* 8 February 2011, for failure to report to his appointed place of duty, and for wrongfully borrowing money from junior Soldiers (Field Grade)

4.  On 13 May 2011, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14, paragraph 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.  

5.  On 17 May 2011, the applicant consulted with legal consult, was advised of the impact of the discharge action, and waived his right to an administrative separation board conditionally based on receiving a characterization of service no less favorable than general, under honorable conditions.  He did not submit a statement in his own behalf.  His unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.

6.  On 23 May 2011, 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.  Accordingly, the applicant was discharged on 13 June 2011.  

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of paragraph       14-12c of Army Regulation 635-200 with a characterization of service of general, under honorable conditions by reason of misconduct - commission of a serious offense with a separation program designator (SPD) code of "JKQ" and a RE code of "3."  He completed 11 years, 8 months and 14 days of creditable active service during this period.  

8.  The applicant subsequently applied to the ADRB in an effort to upgrade his discharge, to change the narrative reason for his discharge, and to change his RE code to allow for the possibility of reentering service.

9.  On 8 June 2012, the ADRB determined that the narrative reason for the applicant's separation was inequitable due to the minor nature of the offenses and directed the issuance of a new DD Form 214 by changing the separation authority to read "Army Regulation 635-200, paragraph 14-12a", the narrative reason for separation to read "Misconduct (Minor Infractions)" and a corresponding SPD code of "JKN."  However, there was no change to his        RE code of "3."

10.  The applicant provides his ADRB Case Report and Directive with personal notes detailing what he believes to be unjust and what he believes were mitigating circumstances.  In effect, he disagrees with having been separated from service as opposed to receiving additional punishment under the UCMJ and claims he was completely blindsided by the separation process.  He also provides a letter to a Member of Congress in which he requests assistance in gaining enlistment in the North Carolina ARNG.

11.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The SPD code of "JKN" is the correct code for RA Soldiers discharged in accordance with Army Regulation 635-200, paragraph  14-12a, for Misconduct (Minor Infractions).

12.  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 of "JKN" has a corresponding RE code of "3." 

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE code 2 no longer applies
* RE code 3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification in waivable
* RE code 4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 1-16d(2) states the rehabilitative transfer requirements in chapters 11, 13, and 14 may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the applicant's contentions, the evidence of record shows he was properly assigned RE code "3" when he was discharged in accordance with Army Regulation 635-200, paragraph 14-12a, for Misconduct (Minor Infractions) with a corresponding SPD code of JKN.  

2.  An RE code "3" does not preclude him from enlisting; however, it does require approval of a waiver.  Requests for waivers are processed through the U.S. Army Recruiting Command by local recruiters and are not within the purview of the Board.

3.  In view of the aforementioned evidence, there is no basis for granting 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)                                         AR20140020977





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ABCMR Record of Proceedings (cont)                                         AR20140020977



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