RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000331 


	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.









      The following members, a quorum, were present:













	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 (RE) code of RE-4 be changed to an RE-3 code.   

2.  The applicant states, in effect, that he is requesting his RE code be changed because an RE-4 was too harsh for the type of discharge he received.  

3.  The applicant provides a self-authored statement and an Army National Guard (ARNG) separation document (NGB Form 22) 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 record shows that he enlisted in the ARNG on 13 November 1998.  He entered active duty on 9 December 1998, to attend initial active duty for training (IADT) in military occupational specialty (MOS) 91B (Medical Specialist).  He completed the 10-week medical specialist course at Fort Sam Houston, Texas, and was awarded MOS 91B.  He was subsequently released from active duty (REFRAD) and returned to his ARNG unit on 2 July 1999.  The separation document he was issued at the time shows he completed 4 months and 24 days of active military service, and that he held the rank of private/E-2 (PV2).  

3.  The applicant's record shows that he served with the 1st Battalion of the 303rd Armor Regiment, of the Washington ARNG, Kent, Washington.  It also shows that he was promoted to private first class (PFC) on 24 April 2000, and to specialist (SPC) on 26 September 2000.  


4.  On 3 July 2001, the unit commander notified the applicant that he was considering reducing him based on his misconduct (unsatisfactory participation). The record contains Unexcused Absence letters, dated 1 May 2001 and 13 June 2001, that show the applicant had been absent from scheduled unit training assembly (UTA) for 4 periods between 27 and 29 April 2001, 5 periods between 18 and 20 May 2001, and 5 periods between 8 and 10 June 2001.  

5.  An electronic mail (e-mail) message on file indicates that the applicant was absent without leave (AWOL) from April through June 2001, which constituted sufficient unexcused periods to support his separation for unsatisfactory participation.  After the applicant failed to respond within 35 days of the date the unit commander notified him of the intent to reduce the applicant for misconduct (unsatisfactory participation), the applicant was reduced to private/E-1 (PV1), and a separation packet was processed through channels and the applicant was discharged from the ARNG and as a Reserve of the Army on 19 February 2002.  

6.  The NGB Form 22 issued at the time of the applicant's discharge shows he was discharged under the provisions of Paragraph 8-26k, National Guard Regulation 600-200, by reason of unsatisfactory performance.  It also shows he was issued an under other than honorable conditions (UOTHC) discharge, and that he was assigned an RE-4 code. 

7.  On 12 August 2005, the Army Discharge Review Board (ADRB) determined, based on the applicant's overall record of service, that the applicant's discharge was inequitable as to characterization.  The ADRB recommended that the Adjutant General of the State of Washington consider changing the applicant's characterization of service to general, under honorable conditions and issue the applicant a new NGB Form 22.  The Board further directed, notwithstanding the final decision of the Adjutant General of the State of Washington, that the discharge order from the Reserve of the Army be changed to reflect a characterization of service of general, under honorable conditions.  The ADRB further indicated that the applicant's misconduct and poor duty performance clearly diminished the overall quality of his service below that meriting a fully honorable discharge, and informed the applicant that a change to his RE-4 code was not within the ADRB's purview.  

8.  Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures for the administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers.  Chapter 13 contains guidance on separation for Unsatisfactory Participation in the Ready Reserve.  It states, in pertinent part, that a Soldier is 


subject to discharge for unsatisfactory participation when it is determined that the 
Soldier is unqualified for further military service because he/she is an unsatisfactory participant.  The characterization of service for members separated for unsatisfactory participation will normally be UOTHC, but characterization as general, under honorable conditions may be warranted based on the member's overall record of service.  Characterization of service as Honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

9.  National Guard Regulation 600-200 (ARNG Enlisted Personnel Management) establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers.  Chapter 8 provides guidance on enlisted separations and Section IX provides guidance on assignment of RE codes and establishes RE-3 as the proper code to assign members separated by reason of unsatisfactory participation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE-4 code he was assigned upon his discharge from the ARNG and Reserve of the Army should be changed to an RE-3 code was carefully considered and found to have merit. 

2.  By regulation, the proper RE code to assign members discharged from the ARNG and Reserve of the Army by reason of unsatisfactory participation is 
RE-3.  The evidence of record in this case shows that the applicant was improperly assigned an RE-4 code at the time of his 19 February 2002 discharge from the ARNG and Reserve of the Army.  Therefore, it would be appropriate and serve the interest of justice and equity to grant the requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x__  __x__  __x__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and Department of the Army records of the individual concerned be corrected by showing he was assigned a Reentry Code of RE-3 vice RE-4 in conjunction with his 19 February 2002 discharge from the Army National Guard and as a Reserve of the Army.




      	______x      _______
                		CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080000331


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
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