IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080005952 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reentry (RE) Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to RE-1.  He also requests that a DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge) be sent to him as stated in Item 18 (Remarks) of his DD Form 214.

2.  The applicant states, in effect, that he was falsely accused and exonerated because there was no evidence linking him to the accusations made.  He also contends that he never received a DD Form 215 as indicated in Item 18 of his DD Form 214:  "DD Form 215 will be issued to provide missing information."  He does not state specifically what error would need correcting on the DD Form 215; it is presumed, he means that his RE Code should have been corrected on a DD Form 215. 

3.  The applicant provides a copy of a Criminal Investigation Division (CID) Interim Report of Investigation, dated 29 November 1991.

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 was a member of the U.S. Army Reserve (USAR).  He was ordered to active duty in support of Operation Desert Shield/Desert Storm.  He served in Southwest Asia from 7 February – 19 September 1991.

3.  The CID Interim Report of Investigation, dated 29 November 1991, shows that the applicant was being investigated for stealing one pair of night vision goggles, valued at $4,500.00, and various other miscellaneous government property, valued in excess of $392.32.  He allegedly mailed the property from Saudi Arabia to his private residence in Puerto Rico.  U.S. Custom officials seized the package in the mail containing a pair of night vision goggles.  The interim investigation found that the applicant did not write the questioned address and return address entries on the package; however, the Staff Judge Advocate opined that there was sufficient evidence to title the applicant with larceny, and the investigation was continuing.  

4.  On 3 March 1992, the unit commander notified the applicant that he was initiating action to separate the applicant from the Army, under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 14, for the commission of a serious offense.  He indicated that the applicant stole one pair of night vision goggles and other miscellaneous government items and mailed them to his private residence in Puerto Rico.

5.  On 27 March 1992, the separation authority approved the applicant's discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense.
The applicant was assigned a Separation Program Designator (SPD) code of "JQK."  The entry in Item 27 of his DD Form 214 for RE code shows "NA (Not Applicable)."

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The RE code is entered in Item 27 of the DD Form 214.  The RE code is not applicable for officers, U.S. Military Academy (USMA) cadets who fail to graduate of enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause. 

7.  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 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.  

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

9.  A separation code of "JKQ" applied to persons who were separated under the provisions of chapter 14, Army Regulation 635-200, for misconduct – commission of a serious offense.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 was the applicable RE code assigned for individuals separated by reason of misconduct – commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation
635-200, by reason of misconduct - commission of a serious offense.  Although he alleges that he was falsely accused and then exonerated, the CID Report of Investigation he provided does not exonerate him.  The CID Report of Investigation was an interim report; a final report of investigation was not available for review.  Since he was processed for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct, it is presumed that a final CID report of investigation supported the narrative reason for discharge.  Therefore, in the absence of evidence in the contrary, administrative regularity is presumed in the administrative discharge process.

2.  Although the regulatory guidance requires that an RE code be entered for Reserve Component Soldiers who are discharged for cause, the applicant was not assigned an RE code in Item 27 of his DD Form 214.  If he had been assigned an RE code as required by the governing regulations, it would have been RE code RE-3 meaning that he was not qualified for continued Army service, but the disqualification is waivable.  
3.  To correct his record and assign an RE Code of RE-3 at this time would result in a less favorable action to the applicant.  Therefore, based on matters of equity, no change will be made to the applicant's RE code which is shown as "NA" on his DD Form 214.  There is also no basis upon which to assign an RE code of RE-1 because the RE code is based on the narrative reason for discharge, and his reason for discharge is fully supported in the official record.

4.  Regarding the applicant's request for issuance of a DD Form 215, this form is only provided to Soldiers when a correction is made to their DD Forms 214.  The statement:  "DD Form 215 will be issued to provide missing information," is usually placed in Item 18 for many Reserve Component Soldiers whose official records may be incomplete at the time of discharge or release from active duty.  If an error or omission is detected at a later date, a DD Form 215 is published to correct an error or include new information.  There is no evidence, other than the incorrect RE code discussed above, of an error or omission in the applicant's DD Form 214.  As such, there would have been no basis upon which to issue a DD Form 215. 

5.  If the applicant still desires to enlist, the responsibility for processing waivers of RE codes rest with the Service recruiters.  The applicant should contact a U.S. Army recruiter or any other Service recruiter to determine whether he requires a waiver to enlist. 

6.  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 any evidence that would satisfy this requirement.

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.



	___________X____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005952



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ABCMR Record of Proceedings (cont)                                         AR20080005952



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