RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20070002914 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 that his records be corrected by upgrading his reentry code (RE Code) from 3 to 1.

2.  The applicant states, in effect, that he misses the Army and intends to come back into the Army to make it a career if his RE code is corrected 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self authored statement, his Resume, his Employee Evaluation Report from the Maine State Prison, an electronic mail character letter from a Professor of Criminal Justice, an electronic character letter from a retired school teacher, and a reference letter from a member of the Military Police Corps, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on   16 January 2003, the date of his separation.  The application submitted in this case is dated 10 February 2007.

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 records show that the applicant enlisted and entered active duty on 12 January 1999.  Records further show that the applicant completed basic combat training and advanced individual training and was awarded military occupational specialty 95B (Military Policeman).  The highest grade he achieved was specialist/pay grade E-4.  

4.  The applicant’s records show that during his tenure on active duty, he completed an overseas tour and he earned the following awards:  the Army Service Ribbon; the Army Good Conduct Medal, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the 
Marksman Marksmanship Qualification Badge with the Small Bore Pistol and Rifle Bars.  The applicant's records do not show any significant acts of valor during his military service.

5.  On 4 March 2002, the applicant underwent a mental status evaluation by a staff psychiatrist at a military treatment facility (MTF) for personality disorder and was found to be mentally responsible.  Additionally, the evaluator determined that the applicant was a command liability.

6.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 2 May 2002 for disobeying a lawful order.

7.  On 7 October 2002, the applicant acknowledged receipt of notification by his commander of his intention to initiate elimination action on him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for patterns of misconduct.  The applicant was also advised of his right to consult with counsel prior to making an election of his rights.

8.  On 12 November 2002, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant indicated with his initials on a written statement that he waived consideration of his case and his personal appearance before an administrative separation board.  He further indicated on the written statement with his initials that he did not desire to make a statement regarding the separation action.  He was afforded the opportunity to submit statements in his own behalf but declined to do so.

9.  On 21 November 2002, the applicant's company commander signed the separation action citing the applicant's multiple lateness, failure to be at his appointed place of duty, absence without leave, and disruptive behavior within the unit, as the basis for the recommendation for separation and forwarded the memorandum to the battalion commander.

10.  On 21 November 2002, the applicant's battalion commander concurred with the company commander's recommendation and forwarded the action to the applicant's group commander recommending separation under chapter 14 of Army Regulation 635-200 for patterns of misconduct.  The battalion commander recommended an under other than honorable conditions separation.

11.  On 3 December 2002, the applicant's group commander concurred with the battalion commander's recommendation and forwarded the action to the approval authority recommending separation under chapter 14 of Army Regulation       635-200 for patterns of misconduct.  The group commander recommended an under other than honorable conditions separation.  

12.  On 18 December 2002, the separation approval authority approved the recommendation for separation and ordered the applicant’s separation under the provision of chapter 14 of Army Regulation 635-200 for patterns of misconduct.  Additionally, the approval authority directed the applicant's separation be characterized as under other than honorable conditions.

13.  On 30 December 2002, the applicant acknowledged receipt of a copy of the approved discharge for patterns of misconduct and the original order not to reenter or be found within the limits of the installation he was assigned to.

14.  On 16 January 2003, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 14 for misconduct.  His
DD Form 214 shows he was given a character of service of "Under Other Than Honorable Conditions," a Separation Program Designator code of "JKA," and a Reentry Code of “3.”

15.  On  17 October 2003, the Army Discharge Review Board (ADRB) reviewed and approved the applicant's request for an upgrade of his characterization of service from "under other than honorable conditions" to "honorable," changed the reason and authority for discharge from "Army Regulation 635-200, Paragraph 14-12b, Misconduct" to "Army Regulation 635-200, Paragraph 5-3, Secretarial Authority," and restored the applicant's grade from "private/pay grade E-1" to "private/pay grade E-2."   The ADRB elected not to amend the applicant's RE code. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In the version in effect at the time, chapter 14 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court, desertion and absence without leave, and other acts or patterns of misconduct.

17.  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 (Regular Army and Army Reserve Enlistment Program), 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 Regular Army RE codes.

	a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army.

	b.  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.

18.  Army Regulation 635-5-1 states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which 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 DOD and the military services to assist in the collection and analysis of separation data.  The JKA SPD code is the correct code for patterns of misconduct.  Additionally, the SPD/RE Code Cross-Reference Table, dated 31 March 2003 shows that “RE-3” is the appropriate RE code for individuals who separated with an SPD code of JKA.

19.  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.  The U.S Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that the Board's exhaustion requirements (AR 15-185, paragraph 2-8) effectively shortens the filing period, has determined that the 3 year limit on filing to the ADRB should commence on the date of final action by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code, currently RE-3, should be changed to RE-1.

2.  The evidence confirms that the applicant’s RE code was assigned based on the fact that he was separated for misconduct under the provisions of Army Regulation 635-200, chapter14.  He received the appropriate RE code associated with his discharge.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant was discharged due to misconduct and the RE-3 assigned to the applicant at the time of his discharge is correct.  Although the ADRB directed a change to the applicant's characterization of service, it did not change his RE code.

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

5.  The applicant is advised that although his RE-3 was properly assigned; this does not mean that he is totally disqualified from returning to military service.  The disqualification upon which the RE-3 was based may be waived for enlistment purposes.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE Code.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 17 October 2003.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 October 2006.  However, the applicant did not file within the 3-year statue of limitations and has not provided compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LMD__  _DKH___  _JS_____  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice or failure to timely file.  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
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.