RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060015213 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry

Chairperson

Mr. Thomas E. O’Shaughnessy

Member

Mr. James R

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, correction of her Reentry Eligibility (RE) Code.

2.  The applicant states, in effect, that she believes her RE Code should be changed from RE-3 to RE-1 for moral reasons.  The applicant also states, in effect, that she was in a bad marriage with her first husband and she "made a bad judgement call" while in the Army.  She further states, in effect, that she has learned from her past mistake.  The applicant adds, in effect, that she is now a wife to a wonderful husband and a proud mother who wants to "be all [she] can be" and requests the Board consider changing her RE Code.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 7 May 1998; an unsigned letter from Mr. Frank L____, Jr., dated 1 March 2005; and University of Phoenix, Student Services, Student Verification Letter with Schedule and Grades, dated 11 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on
7 May 1998, the date of her discharge from the Army.  The application submitted in this case is dated 10 October 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.  On 14 July 1993, the applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years.  She subsequently enlisted in the Regular Army (RA) for
3 years and entered active duty on 1 October 1993.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 94B (Cook), which was subsequently redesignated to MOS 92G (Food Service Specialist).  The applicant served overseas in Germany from 16 March 1994 to 7 May 1998.

4.  On 13 February 1996, the applicant reenlisted in the RA for a period of
4 years.  The applicant was promoted to the rank of sergeant/pay grade E-5, effective 1 November 1996.

5.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 3 February 1998.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for, on or about 30 July 1997, wrongfully using amphetamine, a controlled substance.  The punishment imposed was reduction to specialist/pay grade E-4, forfeiture of $350.00 pay, and an oral reprimand.

6.  On 9 April 1998, the captain serving as the applicant's company commander recommended her separation from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14 (Misconduct), paragraph 14-12c (Commission of a Serious Offense).  The company commander and lieutenant colonel serving as the battalion commander both recommended the applicant receive an honorable discharge.

7.  On 29 April 1998, the colonel serving as Commander, Operations Group, Combat Maneuver Training Center (Germany), approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and, in pertinent part, directed she receive a General (Under Honorable Conditions) Discharge Certificate.

8.  The DD Form 214 issued to the applicant upon discharge from the RA shows the separation authority was Army Regulation 635-200, paragraph 14-12c(2), and the reason for her separation was misconduct.  Based on the authority and reason for her separation, the applicant was assigned a separation program designator (SPD) code of JKK and an RE Code of RE-3.  At the time of her discharge the applicant had completed a total of 4 years, 7 months, and 7 days active service.

9.  The applicant's military service records show that on 26 April 2005, she applied to the Army Discharge Review Board (ADRB) for upgrade of her general discharge under honorable conditions to an honorable discharge.  In her request for upgrade of her discharge, the applicant presented similar evidence and reasons that she now presents in her application to the ABCMR.  The ADRB concluded that the applicant's discharge was proper; however, inequitable as to characterization.  On 20 January 2006, the ADRB approved a change to the applicant's characterization of discharge to "honorable."  The ADRB further determined that the reason for discharge was both proper and equitable and voted not to change it.
10.  In support of her application, the applicant provides an unsigned letter from her former supervisor, Mr. L____, Chief, Food Service Branch, Base Support Battalion (Germany), which attests to her superior duty performance, positive attitude, and willingness to contribute to the betterment of the organization while under his supervision.  He also offers that the applicant assisted Soldiers and Army Families in the community beyond what is normally expected and offers a personal endorsement of the applicant's current standing as a model American.
The documents from the University of Phoenix show that the applicant is enrolled as a student pursuing a Bachelor of Science degree.

11.  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 identifies the SPD code of JKK as the appropriate code to assign RA enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), based upon misconduct.  The SPD/RE Code Cross Reference Table provides for the assignment of RE-3 for members separated with this SPD code.

12.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  RE-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.

13.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the Armed Forces are categorized as prior service personnel.  The applicant's military records show that she qualifies as prior service.)

14.  Army Regulation 601-210 also prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the RA and the USAR.  Paragraph 3-20 (Verification of prior service) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

15.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the USAR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate email address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

16.  The governing Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct
RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the
RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, U.S. Army Human Resources Command, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."

17.  There is no evidence in the applicant's record which shows that she applied for a waiver of her RE Code to enter the U.S. Army and/or that her request was denied.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the RE-3 code she received in conjunction with her discharge from the RA and the supporting evidence she provided were carefully considered.

2.  The evidence of record confirms the applicant’s RA separation processing was accomplished in accordance with the applicable regulation, all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  A review of the applicant's discharge by the ADRB determined that her discharge was proper but, inequitable as to characterization.  Accordingly, the ADRB approved an upgrade of the applicant's characterization of service from that of a general discharge under honorable conditions to an honorable discharge.

4.  The evidence of record shows the RE Code (i.e., RE-3) that the applicant received was appropriately assigned based on the authority and reason for her separation.  In addition, the ADRB determined that the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c(2), was proper, notwithstanding the ADRB's directive to change the applicant's character of service.  As a result, the assigned RE Code of RE-3 was and remains valid.  Therefore, the applicant is not entitled to correction of her records.

5.  The evidence of record indicates that one reason the applicant may be requesting change to her RE Code is in order to reenter the U.S. Army.  In this regard, if this is so, the evidence of record shows that individuals, including prior service personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.

6.  Accordingly, the applicant is advised that, although no change is being recommended to her RE Code, this does not mean that she is disqualified from enlistment in the U.S. Army, as the RE-3 code she was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, she should contact a local recruiter to determine her eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a prior service member as to the needs of the Service and are required to process waivers of RE codes.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 May 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 May 2001.  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

____HOF_  ___TEO_  ___JRH _  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.




______Hubert O. Fry_______
          CHAIRPERSON






INDEX

CASE ID
AR20060015213
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/22
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19980507
DISCHARGE AUTHORITY
AR 635-200, Paragraph 14-12c(2)
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.