RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 May 2005
      DOCKET NUMBER:   AR20040005281


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the narrative reason for his
separation be changed from fraudulent entry to erroneous entry and an
upgrade of his reentry (RE) code.

2.  The applicant states, in effect, that an Army court informed him that
he was a victim and not a criminal by assigning him a mobilization team
representative to assist him in the Naturalization process.  He claims,
however, that while this representative wanted to assist him, his commander
did not give her the opportunity.  He further states that his separation
was unjust and he tried to resolve this through his post commander, but he
was instead sent to jail.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.   The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 9 April 1999.  He was trained in, awarded and served
in military occupational specialty (MOS) 67T (Helicopter Repairer) and the
highest rank he attained while serving on active duty was specialist/E-4
(SPC/E-4).

2.  On 20 September 2001, a Criminal Investigation Division (CID) special
agent informed the applicant’s unit commander that an investigation had
resulted in a determination that there was probable cause to believe the
applicant had committed the offenses of unlawful enlistment, fraud and
misuse of VISAs.

3.  On 10 January 2002, the unit commander notified the applicant that
separation action was being initiated on him for fraudulent enlistment, and
that he was recommending the applicant receive an honorable discharge.

4.  On 16 January 2002, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action for fraudulent
enlistment, its effects, and of the rights available to him.  Subsequent to
this counseling, the applicant requested consulting counsel and elected to
submit a statement in his own behalf.  The applicant’s statement is not on
file in the Official Military Personnel File (OMPF).

5.  On 16 January 2002, the unit commander recommended that the applicant
be separated under the provisions of paragraph 7-17, Army Regulation 635-
200, by reason of fraudulent enlistment.  The unit commander stated that
the reason for the action was that the applicant had attained a fraudulent
work visa that allowed him to unlawfully enlist in the Army.

6.  On 23 January 2002, the Chief, Administrative and Civil Law, Fort
Benning, Georgia, reviewed the applicant’s separation action and determined
that all procedural and substantive requirements had been met.  He further
concluded that there was sufficient evidence to support separation and as a
result, he had no legal objection to the action.

7.  On 25 January 2002, the separation authority approved the applicant’s
separation under the provisions of paragraph 7-17, Army Regulation 635-200,
by reason of fraudulent entry, and directed that the applicant’s service be
characterized as honorable.  On 18 February 2002, the applicant was
discharged accordingly.

8.  The separation document (DD Form 214) issued to the applicant on the
date of his separation confirms the applicant completed a total of 2 years,
10 months and 10 days of active military service and held the rank of SPC/E-
4 on the date of his separation.  This document further confirms that the
authority for the applicant’s separation was section V, chapter 7, Army
Regulation 635-200 and that the narrative reason for his separation was
fraudulent entry.  It further shows that based on the authority and reason
for his separation, he was assigned a Separation Program Designator (SPD)
code of JDA and an RE code of RE-3.

9.  On 28 May 2004, the Army Discharge Review Board (ADRB) concluded that
the applicant’s discharge was proper and there was no evidence of any error
or injustice in his separation processing.  However, the ADRB voted to
change the narrative reason for his separation to Secretarial Authority in
the interest of equity.  The ADRB stipulated in its directive that its
change to the authority and reason for the applicant’s discharge did not
entail a change to the applicant’s
RE code.

10.  The DD Form 214 issued as a result of the ADRB action confirms the
authority for the applicant’s separation is now paragraph 5-3, Army
Regulation 635-200 and that the narrative reason for his separation is
Secretarial Authority.  This document furthers shows that based on the new
authority and reason for the applicant’s separation, he was assigned a SPD
code of JFF and an RE code of RE-3.

11.  Army Regulation 635-200 sets forth the policies and procedures for
enlisted separations from the Army.  Chapter 5 contains policies and
procedures for voluntary and involuntary separation for the convenience of
the Government.  Paragraph 5-3 contains guidance on separation under
Secretarial plenary authority.  It states that separation under this
paragraph is the prerogative of the Secretary of the Army.  Secretarial
plenary separation authority is exercised sparingly and seldom delegated.
Ordinarily, it is used when no other provision of this regulation applies,
and early separation is clearly in the best interest of the Army.
Separations under this paragraph are effective only if approved in writing
by the Secretary of the Army or the Secretary's approved designee as
announced in updated memorandums.

12.  Chapter 7 of the enlisted separations regulation provides the
authority, criteria, and procedures for the separation of Soldiers because
of minority, erroneous enlistment, re-enlistment or extension of
enlistment, defective enlistment agreement, or fraudulent entry.  Paragraph
7-17 contains guidance on separation for fraudulent entry.  It states that
fraudulent entry is the procurement of an enlistment, re-enlistment, or
period of active service through any deliberate material misrepresentation,
omission, or concealment of information which, if known and considered by
the Army at the time of enlistment or re-enlistment, might have resulted in
rejection.  This includes all disqualifying information requiring a waiver.


13.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US 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.  RE-3 applies to persons who are disqualified
for continued Army service, but the disqualification is waivable.

14.  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.  This regulation
identifies the SPD code of JFF as the appropriate code to assign Soldiers
separated under the provisions of paragraph 5-3, Army Regulation 635-200,
by reason of Secretarial Authority.  The SPD/RE Code Cross Reference Table
of the regulation stipulates that the RE code for members separated under
this provision of the regulation will be established by the Headquarters,
Department of the Army (HQDA) directive authorizing the separation.

15.  The SPD code regulation identifies the SPD code of JDA as the
appropriate code to assign members separated under the provisions of
chapter 7, Army Regulation 635-200, by reason of fraudulent entry.  The
SPD/RE Code Cross Reference Table of the regulation establishes RE-3 as the
proper RE code to assign Soldiers separated with an SPD code of JDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his separation and the RE code he was
assigned were unjust and his request to change the narrative reason for his
separation and to upgrade his RE code were carefully considered.  However,
there is insufficient evidence to support relief beyond that already
granted by the ADRB.

2.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation.  This
includes the assignment of his SPD and RE codes.  All requirements of law
and regulation were met and the rights of the applicant were protected
throughout the separation process.

3.  By regulation, the HQDA directive for separation by reason of
Secretarial Authority will establish the RE code to be assigned.  In this
case, the ADRB directive specified that its change to the authority and
reason for the applicant’s separation did not entail a change to his RE
code.  Therefore, absent any evidence of error or injustice related to the
initial RE-3 code assignment, the applicant’s RE code remains valid.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  The applicant is advised that although no change to his RE code is
recommended, this does not mean he is being denied reenlistment.  While
RE-3 does apply to persons who are not considered fully qualified for
reentry or continuous service; there are provisions that provide for a
waiver of the disqualification.  If he desires to reenlist, he should
contact a local recruiter to determine his eligibility.  Those individuals
can best advise a former service member as to the needs of the Army at the
time, and are required to process RE code waivers.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  __CD ___  ___RLD_  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.





            ____John N. Slone______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005281                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/17                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2002/02/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SecAuth                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|                      2.|100.0300                                |
|4                       |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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