BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014823 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014823 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. BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014823 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, correction of the narrative reason for his separation and a change of the reentry (RE) code. 2. The applicant states that he would like to reenter the U.S. Armed Forces. He believes he deserves a second chance to prove that he is a better person. a. He acknowledges that he made mistakes while serving in the U.S. Army and he is determined to prove that he can be successful. He is 30 years of age, homeless, unemployed, and trying to improve his personal situation. b. He adds that he also believes he has a chance of serving with the U.S. Navy Seals. A Navy recruiter explained to him, if his RE code were changed from "3" to "1" he would be eligible to enlist in the U.S. Navy. 3. The applicant provides no additional documentary evidence in support of his application. 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 and entered active duty in the Regular Army (RA) on 8 September 2005 for a period of 6 years. He was awarded military occupational specialty 92Y (Unit Supply Specialist). 3. On 1 November 2006, the applicant's commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12b, based on a pattern of misconduct. The reasons for his proposed action were the applicant failed to pay a debt to Ford Credit Company between 2 September and 2 October 2006 in the amount of $843.78; failed to pay a just debt to the Army and Air Force Exchange Service (Navy Exchange Card) between 1 and 30 September 2006 in the amount of $659.05; and failed to be at his appointed place of duty on 26 September 2006. a. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending the issuance of a general, under honorable conditions discharge. b. The applicant acknowledged receipt of the commander's notification and that he had been advised of his right to consult with counsel. 4. Following notification of the separation action, the applicant consulted with legal counsel and he was advised of the rights available to him. a. He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharge was issued to him. b. The applicant also acknowledged he understood that if he received a discharge/character of service that was less than honorable he could apply to the Army Discharge Review Board (ADRB) for a review of his discharge. However, an act of consideration by the ADRB did not imply that his discharge would be upgraded. c. He elected not to submit statements in his own behalf. d. The applicant and his counsel placed their signatures on the document. 5. The applicant's chain of command recommended approval of the applicant's discharge with a general, under honorable conditions discharge. 6. A copy of the separation authority's approval document is not available. 7. Installation Management Agency, Headquarters, U.S. Army Garrison, Fort Carson, CO, Orders 009-0002, dated 9 January 2007, discharged the applicant from the RA effective 16 January 2007. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 January 2007 UP AR 635-200, paragraph 14-12b, with service characterized as under honorable conditions (general). He had completed 1 year, 3 months, and 27 days of net active service during this period. He had 12 days of time lost under Title 10, U.S. Code, section 972, from 11 December 2006 through 22 December 2006. It also shows in: * item 25 (Separation Authority) – AR 635-200, paragraph 14-12b * item 26 (Separation Code) – "JKA" [Pattern of Misconduct] * item 27 (Reentry Code) – "3" [Not considered fully qualified for reentry at time of separation, but disqualification is waivable] * item 28 (Narrative Reason for Separation) – "Pattern of Misconduct" 9. The applicant enlisted in the Army National Guard (ARNG) of the United States and California ARNG (CAARNG) on 3 June 2008. 10. Joint Force Headquarters, CAARNG, Sacramento, CA, Orders 160-1000, dated 8 June 2012, shows he was honorably discharged on 2 June 2012. The additional instructions, in pertinent part, show he was issued RE code "3." 11. A review of the applicant's military personnel records failed to reveal evidence that he applied to the ADRB for review of the narrative reason for his discharge. REFERENCES: 1. AR 635-200 sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and 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 a general discharge if such is merited by the Soldier's overall record. b. Chapter 3, 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. 2. AR 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. a. It shows the SPD code of "JKA" is the appropriate code to assign Soldiers separated UP AR 635-200, paragraph 14-12b, based on "Pattern of Misconduct." b. The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JKA." 3. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA. Table 3-1 includes a list of the RA RE codes and shows that – * RE-1 applies to Soldiers who are qualified for reentry or continuous service at time of separation, if all other applicable criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends, in effect, the narrative reason for his discharge should be corrected and the RE code should be changed to RE "1" in order to afford him the opportunity to reenter the U.S. Armed Forces. 2. The evidence of record shows the applicant demonstrated a pattern of misconduct during the period of service under review that included failing to pay just debts, failing to be at his appointed place of duty, and being absent without leave for a period of 12 days. In addition, he failed to complete his 6-year active duty service obligation. a. An under other than honorable conditions discharge is normally considered appropriate for a discharge due to misconduct based on a pattern of misconduct. b. The applicant received a general, under honorable conditions discharge. 3. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, type of discharge, narrative reason for separation, SPD and RE codes, and the characterization of service directed are presumed to have been, and still be, appropriate and equitable. In addition, the RE code issued by the CAARNG is presumed to have been, and still be, appropriate. 4. The applicant is advised that an RE code of "3" applies to persons who are not considered fully qualified for reentry or continuous service; however, it allows for a waiver of the disqualification. Therefore, if he desires to reenter military service, he should contact a local recruiter who can advise him on his eligibility for returning to military service. Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014823 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014823 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2