IN THE CASE OF: BOARD DATE: 6 October 2009 DOCKET NUMBER: AR20090008175 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 that his reentry eligibility (RE) code 3 be changed so that he may enlist in the Army National Guard. 2. The applicant states, in effect, that the New Hampshire Army National Guard failed in its attempt to change his RE code. He wants his RE code upgraded. 3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), six letters of support, two heart health screening reports, and a police records check 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. On 20 January 1982, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty 11B (Infantryman). 3. On 11 April 1983, the applicant departed the United States for assignment in the Federal Republic of Germany. 4. On 31 January 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for missing morning formation and room inspection. The punishment included 14 days of restriction and extra duty. 5. On 9 February 1984, the applicant accepted NJP for three specifications of disobeying lawful orders and for not going to his appointed place of duty. The punishment included reduction to grade E-1, a forfeiture of $500.00 pay per month for 2 months, and 45 days of restriction and extra duty. The forfeiture was subsequently reduced on appeal to $250.00 per month for 2 months. 6. Records show that the applicant was convicted by a summary court-martial and sentenced to a forfeiture of $386.00 pay per month for 1 month and confinement at hard labor for 30 days. The nature of his misconduct is not in the available records. 7. On 17 May 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance. Accordingly, he was given a separation program designator (SPD) code of JHJ and an RE code of 3. His character of service was under honorable conditions. 8. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes including RA RE codes. RE 3 applies to persons separated from their last period of service with a waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 9. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code of JHJ was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, paragraph 13, for unsatisfactory performance. Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper RE code to assign to Soldiers separated for this reason. DISCUSSION AND CONCLUSIONS: 1. The applicant contends, in effect, that the New Hampshire Army National Guard failed in its attempt to change his RE code and now wants this Board to change it. 2. The RE code 3 establishing his enlistment/reenlistment ineligibility without waiver was correctly entered on his separation document in accordance with governing regulations. 3. There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code 3. The applicant’s desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code for this purpose. 4. In view of the above, the applicant's request should be denied. 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) AR20090007473 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090008175 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1