IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150003259 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: a. an upgrade of his character of service from under honorable conditions (general) to honorable; and b. correction of item 27 (Reentry (RE) Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his RE code at the time of his discharge as "1" instead of "3." 2. The applicant states, in effect, that special circumstances surrounded his discharge, which occurred only 7 days prior to his original ETS (expiration term of service). He was dealing with a family emergency situation at the time. He deserves to have his RE code upgraded as well, so that he might continue his military career in the United States Army Reserve. 3. The applicant provides copies of the following: * DD Form 214 * a letter to his Member of Congress, dated 9 April 1996 * a memorandum addressed "To Whom It May Concern," titled "Medical Statement," from the Pediatric Clinic at U.S. Army Medical Department Activity (MEDDAC), Fort Stewart, Georgia, subject: "Response for Chapter 6, hardship justification" dated 13 November 1997 * a 1st Battalion, 28th Infantry Regiment Graduation Ceremony program, dated 28 March 1995 * a Discharge Order and Instruction Sheet from Richland Memorial Hospital, dated 31 March 1996 (unreadable) * 2 instructional medical documents (which are not filled out) * a Health Insurance Claim Form * a Ronald McDonald House instruction sheet * DA Form 1103 (Application for Army Emergency Relief (AER) Financial Assistance), dated 10 April 1996 * 2 AER Forms 52-R (AER Check and Allotment Authorization/Promissory Note) * DD Form 1172 (Application for Uniformed Services Identification Card - DEERS Enrollment), dated 1 April 1996 * a Medical College of Georgia, Pre-Operative Instructions document * a document with hand-written names and numbers on it 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 on 23 January 1996. He completed his initial entry training and was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember). The highest rank/grade he attained during his period of active service was private first class/E-3. 3. His record shows he was formally counseled by members of his chain of command on at least 22 occasions between 23 July 1996 and 24 October 1997, for various infractions including being late or absent from early morning formations, failing to report, disobeying lawful orders, indebtedness and writing bad checks, and missing movement. He was counseled that continued unsatisfactory performance and conduct could lead to his separation or elimination from the service. 4. His commander considered imposing nonjudicial punishment (NJP) on 3 November 1997, under the provisions of Article 15 of the Uniform Code of Military Justice, for the applicant's failure to go at the time prescribed to his appointed place of duty, to wit: 0550 hours personnel asset inventory formation on or about 17 September 1997, and his failure to obey a lawful order from a superior noncommissioned officer on or about 16 September 1997. The applicant demanded a trial by court-martial in lieu of NJP. However, there is no evidence a court-martial was adjudicated, which suggests his chain of command decided not to pursue a trial by court-martial against him. 5. He underwent a report of mental status evaluation on 17 November 1997. He was determined to be clear and normal in thought content and process and was mentally responsible. Additionally, he was psychiatrically cleared for any administrative actions deemed appropriate by the chain of command. 6. His commander notified him on 23 December 1997 of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for patterns of misconduct. As reasons for this action, his commander cited his numerous failures to go to his appointed place of duty, his dishonorable failure to pay his just debts, and his writing checks without sufficient funds. The applicant acknowledged receipt of his commander's notification memorandum. 7. The applicant 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 available to him. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge and he understood that if he received a character of service less than honorable, he could make application to the Army Discharge Review Board (ADRB) or this Board for an upgrade. However, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 8. He stated he would submit statements in his own behalf; however, such statements, if submitted, are not available for review. His defense counsel did submit an opinion arguing legal insufficiency and opposing the applicant's separation action. 9. The applicant's immediate commander recommended on 12 January 1998 that further counseling and rehabilitation efforts be waived. He initiated separation action against the applicant in accordance with Army Regulation 635-200, paragraph 14-12b, for misconduct, with an under honorable conditions (general) discharge. 10. The separation authority waived further rehabilitative efforts on 20 January 1995; directed he not be transferred to the Individual Ready Reserve; approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct; and directed the issuance of a General Discharge Certificate. 11. He was discharged from the Army on 29 January 1998, under the provisions of Army Regulation 635-200, paragraph 14-12b, with an under honorable conditions (general) characterization of service. The DD Form 214 he was issued shows he was credited with the completion of 2 years and 7 days of net active service. Additionally, it shows the following entries in: * Item 26 (Separation Code): "JKA" * Item 27 (Reentry Code): "3" * Item 28 (Narrative Reason for Separation): "Misconduct" 12. There is no indication the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provided the following documentation: a. A letter to his Member of Congress, dated 9 April 1996, wherein he requested assistance in getting his wife back home to Miami. (1) He stated he was graduating from Basic Training in South Carolina on 28 March 1996 and his wife, 7 months pregnant, was visiting. However, she gave birth to their son, on or about 29 March 1996, who was premature and had to be admitted to the Richland Memorial Neonatal Intensive Care Unit. (2) His mother-in-law was caring for their two other children but needed help in getting his wife and the newborn transferred down to the South Miami Hospital. The military was doing all they could but he felt they could do more. He was on extended leave but needed financial assistance in getting them to Miami. b. A medical statement addressed "To Whom It May Concern," titled "Medical Statement," from the Pediatric Clinic at U.S. Army MEDDAC, Fort Stewart, Georgia, dated 13 November 1997, subject: "Response for Chapter 6, hardship justification." This statement stated the need for the applicant to be present at frequent hospital and clinic visits for his two children, as they had long term medical needs related to respiratory infections and reactive airway disease. c. A graduation ceremony program to indicate he graduated from basic combat training at Fort Jackson, South Carolina on 28 March 1995. d. Six medical documents concerning the premature birth of his son. e. DA Form 1103, dated 10 April 1996, wherein he requested financial assistance through AER to help transport his newborn son to the South Miami General Hospital via a privately owned ambulatory transport unit, and 2 AER Forms 52-R that split the financial support into two equal payments. f. DD Form 1172 that lists the applicant's two older children. It does not list his newborn son. g. A hand-written document with names and numbers on it for nurses, doctors, and air evacuation personnel. 14. The applicant's record does not contain any documentation nor does he provide any that purports to be a request for a Chapter 6 (Separation Because of Dependency or Hardship) as outlined in Army Regulation 635-200. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter (emphasis added). However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 16. 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. Table 3-1 provides a list of RE codes. * RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other 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 – they are ineligible unless a waiver is granted 17. Army Regulation 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 code to be entered on the DD Form 214. It identifies SPD code "JKA" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on misconduct. 18. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "3" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JKA." DISCUSSION AND CONCLUSIONS: 1. The applicant's requests for an upgrade of his character of service from under honorable conditions (general) to honorable and correction of item 27 of his DD Form 214 to show his RE code at the time of his discharge as "1" instead of "3" were carefully considered. 2. Notwithstanding the applicant's sincerity, he contends he was dealing with a family emergency and was only 7 days away from his original ETS date. He mentioned his newborn son was born prematurely and he needed to get his wife and son back to Miami to be reunited with his other children. 3. The evidence in the record, as well as the evidence he provides, shows his son was born on or about 29 March 1996. The evidence further shows he sought relief from AER to help with his financial issues in getting his family back to Miami. Numerous counseling statements show his misconduct occurred during the period between 23 July 1996 and 24 October 1997, which started approximately 4 months after the birth of his son. The applicant's original ETS date was 5 June 1998, more than 4 months after his discharge date. 4. His record reveals his command afforded him multiple opportunities, through counseling, to rehabilitate himself; however, he failed to do so. Consequently, he was discharged from the Army. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service. 5. Although an under other than honorable conditions discharge is normally considered appropriate for the authority and reason for his discharge, it appears the separation authority determined his overall record of service warranted a general discharge. 6. Based on the authority and reason for separation, he was properly assigned an SPD code of "JKA" and a corresponding RE code of "3" in accordance with applicable regulations. 7. The ABCMR does not correct records solely for the purpose of establishing eligibility for programs, benefits or for enhancing employment opportunities. The applicant is advised that his RE code does not mean he is disqualified from reentering military service. An RE code "3" applies to persons who are not considered fully-qualified for reentry or continuous service at the time of separation; however, the disqualification may be waived. If the applicant desires to reenter the Army, he should contact a local recruiter who can best advise a former service member as to the needs of the Army at the time. 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) AR20130001380 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003259 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1