IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080007061 


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 be changed.

2.  The applicant states that he believes the RE code he received was inappropriate based upon the circumstances that he did nothing illegal or immoral.  He contends that it has been seven years since his discharge and he would like to reenlist into the Army.

3.  The applicant provides no additional 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 enlisted on 25 October 2000, trained as an indirect fire infantryman, and attained the rank of private first class.  
3.  On 19 November 2001, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct (pattern of misconduct).  The unit commander cited that on numerous occasions the applicant had disrespected a noncommissioned officer (NCO), disobeyed an NCO, failed to go to his appointed place of duty, and communicated a threat toward an NCO.

4.  On 21 November 2001, the applicant consulted with counsel, requested consideration of his case by an administrative separation board, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.  

5.  On 27 November 2001, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

6.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct.  He had served a total of 1 year, 1 month, and 24 days of creditable active service.  

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B.  Item 
26 (Separation Code) on his DD Form 214 shows the entry, "JKA."  Item 
27 (Reentry Code) on his DD Form 214 shows the entry, "4."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCONDUCT.”

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

9.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKA” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.
10.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment 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.

11.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

12.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

13.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

14.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that when the SPD [Separation Program Designator] is "JKA," then an RE code of 3 will be given.  

DISCUSSION AND CONCLUSIONS:

Item 27 on the applicant’s DD Form 214 incorrectly shows his RE code as 4.  Therefore, it would be appropriate to correct item 27 on his DD Form 214 to show the entry, “3.”    

BOARD VOTE:

___xx____  ___xx___  __xx___  GRANT FULL RELIEF 

________  ________  ________  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 all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry, “4” in item 27 on his DD Form 214; and 

	b.  adding the entry, “3” in item 27 on this DD Form 214.



       _    __xxxx_____   ___
       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)                                         AR20080007061





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007061



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1