IN THE CASE OF: BOARD DATE: 15 July 2010 DOCKET NUMBER: AR20100000427 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 show favorable codes in the following blocks: * item 23 (Discharge Type) * item 26 (Separation Code) * item 27 (Reentry Code) * item 25 (Narrative Reason for Separation) 2. The applicant states that prior to his discharge, he was convicted by a special court-martial that sentenced him to a reduction, a forfeiture, and confinement. After his confinement, he returned to his unit to finish his tour of duty. However, during his confinement, a new commander assumed command of his unit. The new commander did not know him or even want to know him. He made it his mission to do everything possible to discharge him. He feels he was punished twice for the same offense and this falls under double jeopardy. It has now been 21 years since he needed to use his DD Form 214 and he is in need of certain benefits. He would like to use his DD Form 214 to its furthest extent possible. He has been a good citizen with no involvement with the law, not even a traffic citation. He is married with a family and a single-family home and is a very dedicated person. He was young and immature at the time and got mixed up with a few bad individuals. 3. The applicant provides a copy of his DD Form 214, dated 2 April 1990. 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's records show he enlisted in the Regular Army for a period of 4 years on 7 August 1986. He completed basic combat and advanced individual training and he was awarded military occupational specialty 13E (Cannon Fire Direction Specialist). The highest rank/grade he attained during his military service was specialist/E-4. 3. The applicant's records also show he served in Alaska from 21 December 1986 to 6 August 1990. His awards and decorations were the Army Service Ribbon, the Driver Badge (Track), the Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 4. On 13 July 1989, he received a letter of reprimand from his immediate commander for failing to obey a lawful order from a commissioned officer. His commander indicated that he demonstrated a severe lack of control and extremely poor judgment. 5. On 20 September 1989, he pled guilty at a special court-martial to one specification of conspiracy to steal car stereo components, one specification of larceny of car stereo components, and one specification of wrongfully receiving stolen property. The court sentenced him to a reduction to private/E-1, a forfeiture of $450.00 pay per month for 6 months, and confinement for 97 days. The convening authority approved the sentence on 1 November 1989. 6. On 21 November 1989, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his court-martial conviction. He was furnished with a copy of this bar, but he elected not to submit a statement on his own behalf. His battalion commander ultimately approved the bar and he elected not to appeal it. 7. His records contain an extensive history of counseling by several members of his chain of command for various infractions including multiple instances of failure to repair, substandard appearance, wearing an earring in uniform, missing formation, failure to be recommended for promotion, missing movement, substandard performance and need of constant supervision, failure to meet room standards, negative attitude, insubordination, suspension of check-cashing privileges, and failure to follow instructions. 8. On 26 March 1990, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct for commission of a serious offense. Specifically, the immediate commander cited the applicant's prior conviction for conspiracy, larceny, and wrongfully receiving stolen property. The immediate commander recommended a general discharge. 9. On 26 March 1990, he acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel and 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 waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf. 10. The applicant further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. 11. The applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct for commission of a serious offense with the issuance of a general under honorable conditions discharge. 12. On 26 March 1990, his intermediate commander concurred with the recommendation and remarked that the applicant's conviction had had an adverse impact on military discipline, good order, and morale of the enlisted Soldiers within the unit. He also recommended a general discharge. 13. On 27 March 1990, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct for commission of a serious offense and directed the applicant be furnished a general, under honorable conditions discharge. Accordingly, the applicant was discharged on 2 April 1990. 14. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with a general under honorable conditions discharge. This form further confirms he completed a total of 3 years, 7 months, and 26 days of creditable military service and he had an unknown number of days lost time. This form shows the following entries: * item 23 shows the entry "discharge" * item 26 shows the entry "JKQ" * item 27 shows the entries "RE-3" and "RE-3C" * item 25 shows the entry "misconduct - commission of a serious offense" 15. There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct for commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority might direct a general discharge if such was merited by the Soldier's overall record. Only a general court-martial convening authority might approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. When the sole basis for separation was a serious offense resulting in a conviction by court-martial that did not impose a punitive discharge, the Soldier's service might not be characterized as under other than honorable conditions unless approved by Headquarters, Department of the Army. 17. Army Regulation 635-200, 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. 18. Army Regulation 635-200 defines the word "separation" as all-inclusive term applied to personnel actions resulting from release from active duty, discharge, retirement, being dropped from the rolls, release from military control of personnel without a military status, or death. It further defines a discharge as a complete severance from all military status gained by enlistment. It also defines a release from active duty as termination of active-duty status and transfer or reversion to a status of a Reserve Component Soldier not on active duty. 19. Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned reentry eligibility (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 U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes. a. An 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. An 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 unless a waiver is granted. c. An RE-3C is the same as an RE-3 and is used when a member has lost time. 20. Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code JKQ is the correct code for Soldiers separating under chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct for commission of a serious offense. 21. The SPD/RE Code Cross Reference Table, dated 2 October 1989, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code JKQ had a corresponding RE code 3. 22. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his DD Form 214 should be corrected to show a favorable discharge type, separation code, RE code, and narrative reason for separation. 2. Soldiers are subject to discharge action if the specific circumstances of a serious offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Manual for Courts Martial. When the immediate commander determines that separation for an act of misconduct is in the best interest of the Army, he/she will process the member for separation. The term "process for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. 3. There is no double jeopardy in the applicant's case. The court-martial convicted him for violating the Uniform Code of Military Justice and sentenced him to a specific punishment. However, his commanding officer determined his conduct or action was prejudicial to good order and discipline and adversely affected unit morale and discipline. 4. The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. The applicant in this case was convicted by a court-martial and sentenced to a reduction, a forfeiture of pay, and confinement. Further, his subsequent actions diminished the quality of his service and adversely affected unit morale and discipline. As a result, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct. 5. When the separation authority approved his discharge, he did not order him to be transferred to a Reserve Component to complete his Reserve obligation. He ordered him to be discharged -- a complete severance from all military status gained by enlistment. Therefore, the type of separation he received is appropriately shown as "discharge" on his DD Form 214. 6. The evidence of record confirms that the applicant's SPD and RE codes were assigned based on the fact that he was discharged under the provisions of paragraph 14(c) of Army Regulation 635-200 due to misconduct for commission of a serious offense. Absent the commission of a serious offense, there was no fundamental reason to process the applicant for discharge. The underlying reason for his discharge was his misconduct for commission of a serious offense. The only valid narrative reason for separation permitted under that paragraph is "misconduct - commission of a serious offense" and the appropriate SPD and RE codes associated with this discharge are JKQ and RE-3 (as well as RE-3C due to lost time. 7. The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant did not submit evidence that would satisfy this requirement. Therefore, he is not entitled to 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) AR20100000427 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100000427 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1