IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010349 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 IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010349 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. IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010349 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 an upgrade of his general discharge and an upgrade of his reentry (RE) code from RE-3 to RE-1. 2. The applicant states: * he was discharged because he was arrested; however, he was never convicted of any charges * the battalion commander wanted to make an example of him before knowing whether he would be convicted or not * his arrest was by civilian authorities and he feels the Army should have waited to see if he would be convicted prior to processing his separation * he is not sure if being arrested is considered a serious offense * he did not do anything to warrant his arrest; his friends were simply playing music too loud in his car * he did not have the weapon on his person when he was arrested; the police asked if he had anything and he disclosed that he had a weapon; he was arrested for carrying a weapon * the other thing was that the premise was closed at the time of his arrest which negated carrying a weapon at a place that serves alcohol * in Texas, a person is allowed to carry a concealed weapon; in any case, he did have a license for the weapon and it was unloaded and secured in the glove compartment 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * District Court documents of misdemeanor/felony charges 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 30 March 2010 and he held military occupational specialty 14J (Air Defense C4I Tactical Operations Center Enhanced Operator). 3. Following completion of training, he was assigned to A Battery, 1st Battalion, 43rd Air Defense Artillery, 11th Air Defense Artillery Brigade, Fort Bliss, TX. 4. On 12 July 2011, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c for the commission of a serious offense. On 26 June 2011, the applicant was arrested by the El Paso Police Department for the possession of a firearm on premises serving alcohol, resisting arrest, and interference with public duties. He also received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for violating Article 86, absenting himself from his duties/unit. The immediate commander recommended a general discharge. 5. On 12 July 2011, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel and he 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 requested consideration of his case by an administrative separation board and appearance before such board. However, he was ineligible for such board. He also elected to submit a statement in his own behalf but failed to do so. He further indicated he understood: * he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge 6. Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with AR 635-200, chapter 14-12c, for misconduct - commission of a serious offense. The applicant's intermediate commander recommended approval of the applicant's discharge with an under honorable conditions discharge. 7. On 17 August 2011, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under honorable conditions discharge. Accordingly, the applicant was discharged on 31 August 2011. 8. The DD Form 214 he was issued confirms he was discharged under the provisions of AR 635-200, paragraph 14-12c due to misconduct - serious offense, with an under honorable conditions discharge. This form further confirms he completed 1 year, 5 months, and 1 day of creditable active service. Additionally, this form shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon * Item 26 (Separation Code) the entry "JKQ" * Item 27 the entry "3" * Item 28 the entry "Misconduct (Serious Offense)" 9. On 10 July 2013, the Army Discharge Review Board (ADRB) reviewed his separation processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 10. He provides two documents, dated 9 February 2015, from the District Attorney, Judicial District Court, El Paso, indicating that the charge of unlicensed carrying of a weapon on premises serving alcohol and the charge of resisting arrest were declined by the court as misdemeanor offenses on 21 September 2011 and 12 December 2011 respectively. REFERENCE: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-5 states 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. Characterization may be based on conduct in the civilian community. The reasons for separation, including the specific circumstances that form the basis for the separation, will be considered on the issue of characterization. b. 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Commission of a serious military or civil offense applies if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Court-Martial. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. d. Paragraph 14-3 states 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. 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. It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (serious offense). The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ. 3. AR 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: * 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 for enlistment unless a waiver is granted DISCUSSION: 1. The applicant committed a serious offense. He was arrested by civil authorities for possession of a firearm on premises serving alcohol, resisted arrest, and interfered with public duties. Accordingly, his chain of command initiated separation action against him under the provisions of AR 635-200, chapter 14, for misconduct - commission of a serious offense. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The evidence supports the characterization of service he received. 2. 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 circumstances of his offense (resisting arrest and possession of firearm on premises serving alcohol) are considered a serious offense in the military. 3. His RE code was assigned because he was discharged under the provisions of AR 635-200, paragraph 14-12c, due to his misconduct - commission of a serious offense. Absent the commission of a serious offense, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his serious offenses. The only valid narrative reason for separation permitted under that paragraph is "misconduct - serious offense" and the appropriate SPD and RE codes associated with this discharge are SPD JKQ and RE-3, which are correctly shown on his DD Form 214. 4. He may desire to reenter the military, which explains why he wants his RE code upgraded. His desire to reenter military service is noted. However, the ABCMR does not correct records solely for establishing eligibility for other programs or benefits. The applicant is advised that if he desires to reenter the military, he should contact a local recruiter who can best 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 reentry 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) AR20150010349 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010349 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2