IN THE CASE OF: BOARD DATE: 16 February 2011 DOCKET NUMBER: AR20100020421 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 his Reentry (RE) code of 3 be upgraded. 2. He states he wants to rejoin the military. 3. He provides no additional documents. 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 (RA) on 7 September 2005. 3. The unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b for misconduct – pattern of misconduct. The unit commander cited as the basis for taking the action the applicant’s failure to go at the prescribed time to his appointed place of duty without authority, on diverse occasions between on or about 9 October 2008 and 18 February 2009. He acknowledged receipt of this notification and was advised of his rights. He consulted with legal counsel and did not submit statements in his own behalf. 4. The separation authority approved the separation action under provisions of Army Regulation 635-200, paragraph 14-12b due to misconduct – pattern of misconduct with a general discharge. 5. He was discharged on 9 April 2009 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct with a general discharge. 6. His DD Form 214 shows he was assigned an RE code of 3 and a Separation Program Designator (SPD) code of "JKA" (Pattern of Misconduct). 7. References: a. 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 include minor disciplinary infractions, a pattern of misconduct, 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. b. Army Regulation 635-5-1 (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, in pertinent part, that the SPD code JKA is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b due to misconduct-pattern of misconduct. The SPD/RE Code Cross Reference Table indicates that an RE code of 3 is the proper code to assign members separated with an SPD code of JKA. c. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. The RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted. DISCUSSION AND CONCLUSIONS: 1. The applicant states he wants his RE code changed so he can rejoin the military. However, the evidence of record does not indicate an error or injustice exists in this case. 2. He was discharged from active duty on 9 April 2009 under the provisions of Army Regulation 635-200, paragraph 14-12b based on a pattern of misconduct. 3. His DD Form 214 shows he was separated with an SPD code of JKA and assigned an RE code of 3 in accordance with the governing regulation in effect at the time. 4. His RE code is based on his reason for discharge and cannot be changed unless his narrative reason for separation is changed. His narrative reason for separation was based on misconduct – pattern of misconduct and there is no basis upon which this reason should be changed. Therefore, there is no basis for granting relief in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ 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. _______ _ _______ ___ 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) AR20100020421 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100020421 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1