RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080001079 


	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:




Chairperson



Member



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 in block 27 of his separation document (DD Form 214) be changed from RE-4 to RE-1 or to any other RE Code, which will allow him to enlist in the Regular Army. 

2.  The applicant states, in effect, that his general discharge was upgraded to an honorable discharge by the Army Board for Correction of Military Records (ABCMR), based on the ABCMR's findings that the misconduct was minor and did not diminish the overall quality below meriting a fully honorable discharge.  He states that the RE-4 prevents him from enlisting in the Armed Forces.

3.  The applicant provides a letter from Counsel dated 24 December 2007, a DD Form 214, a letter from the Office of the Assistant Secretary Manpower and Reserve Affairs dated 30 October 2001 with attachments, a personal statement, and two character statements.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the RE-4 be upgraded so that the applicant can reenlist.

2.  Counsel states the applicant had his DD Form 214 corrected to reflect an honorable discharge; however, the RE-4 was not changed.  Counsel further states the applicant attempted to enlist in the Army but he was told the RE-4 is preventing him from enlisting.  The RE-4 is the only thing that is standing in his way from enlisting.

3.  Counsel provides no additional documentation.

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 personnel record shows he enlisted in the Regular Army on 6 January 1994.  He completed the necessary training and was awarded the military occupational specialty (MOS) 91B (Medical Specialist).

3.  His personnel record shows he had a disciplinary history, prior to the incident that ultimately led to his discharge, consisting of one Letter of Reprimand (LOR), which he received for operating a vehicle under the influence of alcohol.

4.  His personnel record also shows that a court-martial charge of aggravated assault was preferred against the applicant based on his altercation with another Soldier.  After consulting with legal counsel, who advised him of the basis for the contemplated trial by court-martial and the maximum allowable punishment under the Uniform Code of Military Justice (UCMJ), he voluntarily requested an administrative discharge in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged guilt of the offense for which he was charged or of a lesser included offense and indicated that he understood the impact and effects of an under other than honorable conditions discharge.  The applicant elected not to submit a statement in his own behalf.

5.  On 29 May 1998, the separation authority approved the applicant’s discharge request and directed he be discharged under other than honorable conditions and that he be administratively reduced to the lowest enlisted grade.

6.  On 5 June 1998, the applicant was discharged under other than honorable conditions in lieu of trial by court-martial.  He completed 4 years and 5 months of Net Active Service This period.  His DD Form 214 shows he was assigned an RE-4 at that time.

7.  The applicant applied to the Army Discharge Review Board (ADRB) on
11 June 2001.  On 3 August 2001, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable but that the characterization of his service was inequitable.  The ADRB voted to upgrade his characterization of service to general, under honorable conditions based on the 


overall length and quality of his service and concluded that the applicant’s misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.  This action also entailed a grade restoration to SPC/E-4. 

8.  The letter from the Office of the Assistant Secretary Manpower and Reserve Affairs dated 30 October 2001 with attachments show that the applicant had applied to the ABCMR, requesting to upgrade his general discharge to an honorable discharge.  The ABCMR, by unanimous vote, recommended an upgrade of the applicant's discharge to fully honorable based on the fact that the applicant's misconduct was minor and did not diminish the overall quality of his service below that meriting a fully honorable discharge.  The applicant was issued a new DD Form 214 with characterization of service as honorable; however, his RE Code remained as RE-4.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes.

11.  Army Regulation 601-210, paragraph 3-22a, then in effect, provided that
RE-1 applied to persons completing an initial term of active service who were fully qualified for continued Army service when last separated.

12.  Army Regulation 601-210, paragraph 3-22b then in effect, provided that  
RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.

13.  Army Regulation 601-210, paragraph 3-22c, then in effect, provided that  
RE-4 applied to persons separated from last period of service with a non-waivable disqualification.  

14.  Army Regulation 601-210, chapter 4-9(4) prescribes basic eligibility for prior service applicants for enlistment.  That paragraph state, in pertinent part that a waiver is required for any applicant or current member of a Reserve Component 
who was separated or discharged from any component of the United States Armed Forces for the following reason, discharge for the good of the service.  A waiver may not be submitted until a 2-year period has elapsed since separation or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his RE-4 be upgraded to RE-1 or to any other RE Code, which will allow him to enlist in the Regular Army.

2.  The evidence shows that the ABCMR upgraded his characterization of service to fully honorable based on the fact that his misconduct was minor, and it did not diminish the overall quality of his service below that meriting a fully honorable discharge.  However, the RE-4 code was not changed.

3.  In accordance with regulatory guidance, his reason for discharge (discharge for the good of the service in lieu of trial by court-martial) was a waiverable disqualification.  Therefore, the assignment of an RE-4 code at the time of the applicant's discharge was administratively incorrect.  As such, the applicant should have been assigned an RE-3 in accordance with Army Regulations at the time of his discharge.

4.  As for correcting the applicant's record to show he was assigned an RE-1, the ABCMR did not change the reason and authority for his discharge.  As such, it would be inappropriate and in contravention with Army Regulation 601-210, to upgrade his RE code to RE-1.

5.  The applicant is advised that an RE-3 code does not mean that he is totally disqualified from returning to military service.  The disqualification upon which the RE-3 codes were 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.  These 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 

__x __  __x__  __x__   GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his RE-4 to RE-3.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the RE-4 to RE-1.




      ___        x                ___
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20080001079



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