RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	27 November 2007  
	DOCKET NUMBER:  AR20070007747 


	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.


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	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 separation and his Reentry (RE) Code be changed on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that the narrative reason should reflect that he was placed on a two year training discharge with an RE Code of "1."

3.  The applicant adds that the reason he is seeking the Board's help in correcting this injustice is because he was led to believe that he could return back to the Army so long as the two years period had not expired.  He was given false information and when he tried to enlist, he was told that he could not due to the
RE Code on his DD Form 214.

4.  In support of his request, the applicant provides an addendum to his application to the Board detailing the events which led to his enlistment and to his discharge from the Army.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

It appears the applicant has sought counsel; however, counsel has remained silent insofar as the action before the Board is concerned and has provided only a cover letter of transmittal for the applicant's request.

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's records show he enlisted in the US Army Reserve under the alternate training program, on 23 June 1980, for six years, in pay grade E-1.

3.  The applicant was advised on his enlistment for the alternate training program that he must enter initial active duty for training to undergo the common basic training program at an active Army installation.  If he failed to successfully complete the basic training program, he would be discharged from the Reserve.  Upon successful completion of the basic training program, he would be released from active duty and be permitted to return to civilian status.  He would then immediately commence training with his assigned troop program unit (TPU) in a paid drill status.  Within one year of the last day of his separation from active duty for training (after successful completion of basic training), he would be required to again enter active duty for training to successfully complete advanced individual training resulting in his qualification in a military occupational specialty (MOS).

4.  After being advised of the provisions of the alternate training program, he certified by his signature that he had fully read and understood the alternate training program policy provided for him on enlistment.  The applicant acknowledged the alternate training program agreement on 23 June 1980.

5.  The evidence shows the applicant entered active duty for training, on 28 June 1980.  On 19 July 1980, while in basic combat training, he received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in language to a noncommissioned officer who was then in the execution of his office.  The imposed punishment was a forfeiture of $104.00 per month for one month (suspended for 60 days), restriction to the company area for 14 days, and to perform extra duties for 14 days.  The applicant did not appeal the punishment.

6.  The applicant received an Article 15 on 30 July 1980.  Although he was found guilty, the commander did not impose any new punishment.  Instead, he vacated the suspension of forfeiture of $104.00, for a period of one month that had been imposed on him in the Article 15 that was administered on 19 July 1980.  The applicant did not appeal the punishment imposed.

7.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and was released from active duty for training and returned to his TPU in Guam. 

8.  On 2 June 1980 (sic), Initial Active Duty for Training (IADT) Orders were published by the Armed Forces Examining and Entrance Sub-Station, Guam, ordering the applicant to report to IADT at Fort Jackson, South Carolina, on
11 July 1981.  The evidence show the applicant arrived at Fort Jackson on
10 July 1981.

9.  On 21 July 1981, the applicant received an Article 15, under the provisions of the UCMJ, for absenting himself from his place of duty on 19 July 1981 without proper authority.  There is no recorded imposed punishment in Item 5 of the DA Form 2627, Record of Proceedings under Article 15, UCMJ; however, the applicant indicated that he did not appeal the punishment imposed.

10.  A copy of documents related to the applicant's trainee discharge are not available in his service personnel records; however, a copy of the DD Form 214 he was provided on the date of his discharge is.  This DD Form 214 was signed by the applicant in the appropriate space.

11.  The applicant was honorably discharged in the rank and pay grade of Private, E-2, on 10 September 1981, under the provisions of Army Regulation (AR) 635-200, chapter 5, paragraph 5-33f(2).  The narrative reason for separation shown on his DD Form 214 is "Trainee Discharge Program (TDP) Marginal or Nonproductive."  The reenlistment code shown on the applicant's DD Form 214 is "RE-3."  On the date of his discharge, the applicant had completed 2 months and 1 day of creditable service on his current period of active duty for training.  The applicant had previously completed 1 month and 23 days active duty for training during his enlistment.

12.  The evidence of record shows the applicant was discharged from the US Army Reserve on 10 September 1981 by orders 191-10, Headquarters, US Army Western Command, Fort Shafter, Hawaii, dated 8 September 1981.

13.  AR 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-33 of this regulation, in effect at the time, governed the Trainee Discharge Program (TDP).  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or who failed to respond to formal counseling.  The regulation essentially required that the service member must have voluntarily enlisted; must be in basic, advanced individual training, on the job, or service school training prior to award of a military occupational specialty and must not have completed more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers could be separated when they had demonstrated that they were not qualified for retention due to failure to adapt socially or emotionally to military life; could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or had demonstrated character and behavior characteristics not compatible with satisfactory continued service. 

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry codes, based on their service records or the reason for discharge.  AR 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 reentry codes, including RA RE codes.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons with a HQDA bar to reenlistment.  RE-3 applies to persons not qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.  RE-2 applies to Soldiers being separated before completing a contract period of service whose reenlistment is not contemplated.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army.

15.  The SPD/RE Code Cross Reference Table, dated October 1999, provides instruction for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JET" [later changed to SPD "JGA"] has a corresponding RE code of "3."

16.  There is no evidence in the applicant's service personnel record, and the applicant provided none, as he asserts in his statement in support of his claim, to show he ever attempted to secure a waiver for his reenlistment in the Army after he was discharged under the trainee discharge program.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence shows the applicant enlisted in the Reserve under the alternate training program.  While in basic combat training, he received nonjudicial punishment for being disrespectful in language to a noncommissioned officer who was then in the execution of his office.  A forfeiture of pay was imposed 

on him for this violation.  The forfeiture of pay was suspended for 60 days.  The suspension of pay was later vacated (on 30 July 1980) due to his misconduct.  He successfully completed basic combat training and was returned to his TPU in Guam, per his enlistment contract.

3.  The following year, the applicant was ordered to IADT to complete his advanced individual training and for qualification in an MOS.  It was during this phase of his training he was identified as not having the necessary motivation, discipline, ability or aptitude to become a productive Soldier or who failed to respond to formal counseling.  During this phase of his training, he received non-judicial punishment for absenting himself from his appointed place of duty.

4.  The documents related to the applicant's trainee discharge are not available in his service personnel records; however, a copy of a properly completed DD Form 214 which contains the authority, the reason for the applicant's discharge, and the applicant's signature, is on file in his service personnel records.  It appears from the evidence, discharge proceedings were conducted in accordance with law and regulations applicable at the time; therefore, Government regularity in the discharge process is assumed.

5.  The DD Form 214 the applicant signed, on 10 September 1981, shows he was processed for discharge under the trainee discharge program as being a marginal or nonproductive Soldier.  The narrative reason for separation shown on his DD Form 214 is, "Trainee Discharge Program (TDP) Marginal or Nonproductive," and his reenlistment code is, "RE-3."

6.  The applicant has failed to provide sufficient evidence to show that his separation, which resulted in his receiving an RE Code of RE "3", was in error or unjust.  The applicant was fully advised of the provisions of the alternate training program.  By his signature, he certified he had been fully read and understood what the alternate training program policy provided for him on enlistment.  The applicant acknowledged the alternate training program agreement on 23 June 1980.  

7.  The evidence of record is very clear in this case.  Throughout the period of his service, the Army rigidly abided by the provisions of the contract it entered into with the applicant.  There is no evidence, and the applicant provided none to show he applied for a waiver for his return to the Army and was denied.  There is no evidence of any false information being given him either about his enlistment or his discharge and he is therefore not entitled to a change to the narrative reason for his separation and his RE Code.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x_  __x ___  __x____  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




INDEX

CASE ID
AR20070007747
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071127
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.

3.

4.

5.

6.