RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070018991 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 Item 27 (Reentry Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a code of "RE-3" to a code of "RE-2" or "RE-1" to allow him to reenlist.

2.  The applicant states that he was discharged for a pattern of misconduct although there was no pattern at all.  He served the majority of his 4-year enlistment honorably and although he had a few incidents within a two-month period, there was no pattern of misconduct and his chain of command did not give him a chance for rehabilitation.  He concludes that his post service educational achievement is, in effect, proof that his RE Code is a penalty which is too severe for the conduct involved in his separation.  

3.  The applicant did not provide additional documentary evidence in support of his application. 

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 that he enlisted in the Regular Army for a period of 4 years on 13 July 2000.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest grade he attained during his military service was specialist (SPC)/E-4.  

3.  The applicant’s awards and decorations include the National Defense Service Medal, the Army Service Ribbon, and the Overseas Service Ribbon.  His records do not show any significant acts of valor during his military service.


4.  On 21 March 2003, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully striking another person in the face with his fist on or about 25 January 2003.  His punishment consisted of 10 days of extra duty.

5.  On 20 January 2004, the applicant accepted a second nonjudicial punishment under the provisions of Article 15 of the UCMJ for being drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces, on or about 4 October 2003.  His punishment consisted of a reduction to the rank/grade of private first class (PFC)/E-3, forfeiture of 356.00 pay per month for one month, 14 days of extra duty, and 14 days of restriction.  He appealed the punishment on 20 January 2004, but his appeal was denied by the next superior authority.

6.  On 5 February 2004, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations), for a pattern of misconduct.

7.  On 5 February 2004, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised by his consulting counsel of the basis for the contemplated separation for misconduct and its effects, of the rights available to him, and the effects of any action taken by him in waiving his rights.  He further understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that as a result of such discharge, he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further submitted a statement on his own behalf. 

8.  On an unknown date in February 2004, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct.  The immediate commander further remarked that the applicant had two instances of Article 15 and numerous domestic disturbance issues.

9.  On an unknown date in February 2004, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200.  He further recommended a General Discharge Certificate.


10.  On 10 February 2004, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct, waived the rehabilitation transfer requirement, and denied suspending the execution of separation for 180 days.  He further directed the applicant be furnished a General Discharge Certificate.  On 27 February 2004, the applicant was discharged accordingly.

11.  The DD Form 214 he was issued at the time confirms he was discharged with an under honorable conditions (general) discharge in accordance with paragraph 14-12(b) of Army Regulation 635-200, by reason of misconduct.  He had completed 3 years, 7 months, and 15 days of creditable active military service.  Item 27 of his DD Form 214 shows his Reentry Code as "RE-3."

12.  On 12 August 2005, the Army Discharge Review Board (ADRB) determined that although the applicant's discharge was proper, it was inequitable.  The ADRB granted the applicant relief in the form of an upgrade of his characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  However, this action did not entail a change in his RE code.

13.  Accordingly and subsequent to the ADRB's decision, the applicant was issued a new DD Form 214.  Item 24 (Character of Service) shows the entry "Honorable" and Item 28 (Narrative Reason for Separation) shows the entry "Secretarial Authority."  Item 27 of this DD Form 214 shows his Reentry Code as "RE-3."

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.



15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. 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 RA RE codes.  RE 1 and 2 permit immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-code should be changed from "RE-3" to "RE-2" or "RE-1" that would allow him to reenter the Army.

2.  Evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged under the provisions of chapter 14, Army Regulation 635-200, due to misconduct.  The underlying reason for his discharge was his misconduct.  The appropriate RE code associated with his discharge is RE-3.

3.  The ADRB determined that the applicant's discharge was proper, but upgraded it to honorable based on equity.  The ADRB also considered the applicant's RE code when it directed its upgrade action and determined that the RE code should not be changed.

4.  An RE Code of "3" does not mean that the applicant's service was not honorable or that he was not a good Soldier.  It only means that because of his prior misconduct, he now requires a waiver should he attempt to reenter the Army.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

6.  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 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.

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.




								RML
      ______________________
                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.


ABCMR Record of Proceedings (cont)                                         AR20070018991



6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508