RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060012337 


	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.


	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, who was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 14 (Separation for Misconduct), essentially requests that his reentry (RE) code shown in Item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a “3.” 

2.  The applicant essentially states that he is trying to rejoin the Army, and needs his RE code changed so that he can achieve this task.  

3.  The applicant provides a self-authored statement and a certificate awarding him the Army Commendation Medal in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 27 October 2000, the date of his discharge from the Regular Army.  The application submitted in this case is dated 13 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 27 June 1998.  He completed basic and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  After completing a tour in Korea, he was reassigned to Fort Sill, Oklahoma in October 1999.  

4.  Between March 2000 and August 2000, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on three occasions.  His offenses included being absent without authority from physical training formations on four occasions, being absent without leave from 12 June 2000 to 27 June 2000, going without authority from his appointed place of duty, and failing to go at the time prescribed to his appointed place of duty on two occasions.
5.  On 20 October 2000, the applicant’s brigade commander approved the applicant’s discharge under the provisions of paragraph 14-12b, Army Regulation 635-200 (Enlisted Personnel) for a pattern of misconduct.

6.  On 27 October 2000, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, and issued a General Discharge Certificate.  The Separation Program Designator (SPD) code shown in Item 26 (Separation Code) of his DD Form 214 was “JKA,” which identifies that the applicant was discharged for a pattern of misconduct.  The SPD code of “JKA” was also the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) for Soldiers separating under the provisions of AR 635-200, Paragraph 14-12b, for a pattern of misconduct.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper RE code to assign to Soldiers discharged for this reason.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Further, it also states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

8.  Paragraph 2-1 of Army Regulation 635-5-1 provides that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 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 Regular Army RE codes.  RE 3 applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation.  They are ineligible to reenlist unless a waiver is granted.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code shown in item 27 of his DD Form 214 should be changed from a “3.” 

2.  It is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, for a pattern of misconduct.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his discharge under the provisions of Army Regulation 635-200, Paragraph 14-12b.  Therefore, there is no basis upon which to change this reason.  

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 27 October 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
26 October 2003.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JV____  __PM ___  ___GP __  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




______ James Vick________
          CHAIRPERSON




INDEX

CASE ID
AR20060012337
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.