IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006903 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: * upgrade to honorable of his general discharge under honorable conditions * revision of his reentry (RE) code from RE-3 (waiver required to reenlist) to RE-1 (no waiver needed to reenlist ) 2. The applicant states, in effect: * his conduct while on active duty was childish; he was an extremely immature young man * he was reared in a military family; his father is a retired Army first sergeant, and his parents raised him to be disciplined and sound-minded * he loves his country and the U.S. Army; when he enlisted, his intentions were to make the Army his career * he has honestly matured since making the mistakes which led to his discharge * he was 23 years old when he left the Army; since then he has lived a trouble-free life and been a moral, outstanding citizen * he frequently volunteers within his community, and participates in food drives, Easter egg hunts, and charity walks/runs * in making this request, his goal is to reenlist in the Army, and he can only achieve this dream with the Board's favorable consideration of his request 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two letters of support. 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 22 June 2005 at the age of 22. Following initial training, he was assigned to a unit at Fort Bragg, NC. 3. On 24 February 2006, he departed his unit in an absent without leave (AWOL) status. He returned to military control on 27 February 2006. He went AWOL again on 9 March 2006 and was dropped from the rolls on 8 April 2006. He returned to military control on 28 July 2006. 4. On 27 September 2006, he was offered and accepted nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice (UCMJ) for the aforementioned periods of AWOL. His punishment consisted of reduction to private (PV1)/E-1, forfeiture of $636 per month for 2 months, 45 days extra duty, and a verbal reprimand. 5. He went AWOL again on 16 October 2006. He was dropped from the rolls on 14 November 2006. After being confined by civil authority on 26 March 2007, he was returned to military control on 3 April 2007. 6. On 10 May 2007, his commander notified the applicant of his intent to separate him under the provisions of Section III (Acts or Patterns of Misconduct), paragraph 14-12b (A Pattern of Misconduct), Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations). The commander based his proposed action on the applicant's periods of AWOL. He indicated he was recommending him for a general discharge under honorable conditions. 7. On 15 May 2007, the applicant consulted legal counsel and was advised of the basis of the contemplated separation action. He elected not to present statements in his own behalf. He also acknowledged that he understood he could: * encounter substantial prejudice in civilian life should he receive a general discharge under honorable conditions * apply to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade in character of service 8. The separation authority approved the unit commander's recommendation on 16 May 2007 and directed the applicant be issued a general discharge under honorable conditions. On 8 June 2007, he was discharged accordingly. 9. His DD Form 214 shows he completed 1 year, 1 month, and 4 days of net active creditable service, with 317 days of lost time. His character of service is listed as under honorable conditions (general), the separation authority is Army Regulation 635-200, paragraph 14-12b. The Separation Code (SPD) is listed as JKA, the RE code is RE-3, and the narrative reason states pattern of misconduct. He was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 10. He applied to the ADRB requesting an upgrade of his discharge and RE code. On 28 February 2014, he was notified by letter his requests had been denied. 11. The applicant provides two letters of support, which essentially state: * the applicant was very inexperienced and involved in the darkness of uncertainty while he was in the Army * since his discharge he has turned his life around and connected to the right resources which have pointed him in a better direction * he has been a stellar community volunteer and a model for young and old * he is shown a willingness to reach out and help others as well as improve himself * he has proven himself to be a champion and leader who merits favorable consideration of his request 12. 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 includes a list of the Regular Army RE codes: * 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 * 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 * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 13. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of JKA is the correct code for Soldiers separating under the provisions of chapter 14, paragraph 14-12b of Army Regulation 635-200. 14. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of JKA has a corresponding RE code of 3. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. (1) The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. (2) An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions (emphasis added). b. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 16. According to the Manual for Courts-Martial, the maximum punishment for violating Article 86 (AWOL), UCMJ, is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months when the period is for more than 30 days and is terminated by apprehension (or arrest). DISCUSSION AND CONCLUSIONS: 1. The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge. He states, in effect, he was very immature and has reformed himself since his discharge. He additionally requests his RE code be revised from RE-3 to RE-1 so he can reenlist. 2. Records show the applicant was 22 years of age at the time of his enlistment and age 24 at the time of his discharge. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. a. Given his characterization of service was under honorable conditions, it appears his chain of command took mitigating circumstances into consideration. Discharge under the provisions of paragraph 14-12b typically results in an under other than honorable conditions characterization of service. b. Additionally, had his commander elected to resolve his 317 days of AWOL by preferring court-martial charges, he could have faced a maximum punishment of dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months (based upon a period of AWOL for more than 30 days that was terminated by apprehension (or arrest)). 3. The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations at the time. 4. The evidence of record further confirms his RE code was assigned based on his discharge under the provisions of chapter 14, paragraph 14-12b, Army Regulation 635-200. According to the SPD/RE Code Cross Reference Table, the appropriate RE code for this type of discharge is RE-3. 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) AR20150006903 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006903 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1