RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 January 2008
	DOCKET NUMBER:  AR20070012027 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr

Chairperson

Mr. John T. Meixell

Member

Mr. Rowland C. Heflin

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 his reentry eligibility (RE) code of RE-4 be upgraded to RE-3. 

2.  The applicant states, in effect, he was discharged on 30 January 2004 but he recently attempted to enlist into the Regular Army and was told by an Army Recruiter, he cannot reenter the military with an RE-code of RE-4.  He states that the RE code of RE-4 was a result of a bad conduct discharge based on a court-martial conviction in February 2001 for being absent without leave (AWOL).  He had made a few wrong decisions while serving in the U.S. Army and sincerely believes that people can significantly change for the better as he has.  He cannot change the past but has matured and become a responsible husband and father in the past several years.  He believes he deserves a second chance and he would like to serve his country during this time of need.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two character statements.

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 military service records show that he entered active duty on  
8 January 1997.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 19K (Armor Crewman).

3.  His military service records show that he went AWOL on 2 December 1999 and was dropped from the rolls of the Army on 1 January 2000.  He remained AWOL until he was apprehended by civil authorities and returned to military control on 9 December 2000.

4.  On 4 January 2000, charges were preferred against the applicant for being AWOL from 2 December 1999 to 8 December 2000.  Item 29 (Dates of Time Lost During This Period) of the applicant's DD Form 214 shows that his time lost was 2 December 1999 to 8 December 2000 and 9 December 2000 to 8 February 2001.

5.  The applicant was convicted by a special court-martial and his sentence consisted of reduction to private/pay grade E-1, forfeiture of $500.00 pay per month for 2 months, confinement for 75 days, and a bad conduct discharge.  The bad conduct discharge adjudged on 9 February 2001, was promulgated in Special Court-Martial Order Number 10, Headquarters, 1st Cavalry Division, Fort Hood, Texas, dated 18 July 2001.

6.  The United States Army Court of Military Review affirmed the findings of guilty and the sentence.  Headquarters, U.S. Army Field Artillery Center, Fort Sill Special Court-Martial Order Number 50, dated 6 March 2003, Article 71(c) having been complied with, ordered the Bad Conduct Discharge be executed.  

7.  On 30 January 2004, the applicant was given a bad conduct discharge from active duty for Court-Martial, Other.  He was assigned a separation program designator code (SPD) code of JJD and assigned an RE code of RE-4.  He had completed 5 years, 10 months, and 8 days of active service.  He had accrued a total of 432 days time lost.

8.  The character statements that the applicant submitted states he is responsible and has a willingness to serve his country; he is honest, trustworthy, loyal and a true friend.

9.  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 and the US Army Reserve.  Chapter 3 of this 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.

10.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation  
601-210 states that RE-4 applies to persons separated from last period of service with a non-waivable disqualification.




11.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table  
2-3, states that the SPD code JJD denotes involuntary discharge, Court-Martial, Other.

12.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows that an SPD code of JJD is assigned an RE code of RE-4.

13.  Army Regulation 635-200 (Personnel Separation) states, in pertinent part, that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE code RE-4 be upgraded to RE-3, because he would like to reenter the military.

2.  There is no evidence or indication that there was an error or injustice, which caused the applicant to be discharged due to a court-martial, nor has the applicant contended that there was an error or injustice in his discharge.

3.  Since the applicant was properly discharged, there is no reason to change a correctly assigned RE code.

4.  The applicant's statement and the two character statements submitted were noted.  However, the statements do not provide sufficient basis to upgrade the applicant's RE code RE-4 to RE-3.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF  _   __RCH__  __JTM___  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.




_____Hubert O. Fry, Jr.____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080117
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.