IN THE CASE OF:	 

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080008240 


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, in effect, that his Reentry (RE) Codes be changed so he can enlist in the California Army National Guard (CAARNG).

2.  The applicant states, in effect, that he has been a law abiding person since his discharge from the US Army.  He also states that he regrets that he had a pattern of misconduct during his enlistment.  He would like to join the CAARNG and support his country to the best of his ability.  He further states that he is in good health, good moral standing, and believes that given a second chance he would be a good asset to the Army.

3.  In support of his application, the applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his General Discharge Certificate.

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 records show he enlisted in the Regular Army, in pay grade E-1, on 30 May 1980, with prior USAR enlisted service.  He completed basic armor training and was awarded military occupational specialty 19D, Cavalry Scout.  He was promoted to pay grade E-4 on 1 December 1982.  He was honorably separated for immediate reenlistment on 22 January 1985 and reenlisted on 23 January 1985, for 4 years 

3.  On 4 September 1986, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for making a false official document with the intent to deceive on 19 August 1986.  The punishment included a reduction to pay grade E-3, suspended until 3 December 1986; a forfeiture of $100.00 pay, suspended until 3 December 1986; and 14 days restriction and extra duty, starting 24 September 1986.  The applicant did not appeal the punishment.

4.  A Report of Mental Status Evaluation, dated 23 February 1987, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was depressed, his thinking process was clear, his thought content was normal, and his memory was good.  The evaluating psychologist found him to be mentally responsible and considered him to have the mental capacity to understand and participate in separation proceedings.  The evaluating psychologist stated that the applicant was being evaluated at the Commander's request.  He opined that the applicant was given psychological testing which indicated a lack of insight, immaturity, dependent traits, egocentricity, and demanding personality.  The evaluating psychologist further stated that he would attempt to follow-up with the patient for treatment of depression; however, long term therapy was probably needed, for which he did not appear motivated.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

5.  On 23 March 1987, the applicant accepted punishment under Article 15, UCMJ, for making a false official statement with the intent to deceive on 4 February 1987.  The punishment included a reduction to pay grade E-3, a forfeiture of $200.00 pay, and 14 days restriction and extra duty.  The applicant did not appeal the punishment.  The applicant was reduced to pay grade E-3 on the same day.

6.  On 22 April 1987, the applicant's unit company commander notified him that he was initiating action to discharge him from the US Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for Habitual 
Misconduct.  The unit commander stated the proposed action was because he had established a pattern of misconduct, even after formal counseling, which rendered him unqualified for further service.  

7.  On the same day, the applicant acknowledged receipt of notification of the proposed separation action.

8.  On 22 April 1987, the applicant, after consulting with counsel, waived consideration of his case by an administrative board, contingent upon receipt of a general discharge.  He also elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him.  

9.  On 24 April 1987, the applicant's commander recommended approval of the request for his discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, with a discharge under other than honorable conditions.

10.  On 5 May 1987, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  

11.  The applicant was discharged on 12 May 1987, in pay grade E-2, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct –Pattern of Misconduct, with a general discharge.  He was credited with 6 years, 11 months, and 13 days total active service.  Item 26 (Separation Code), of his DD Form 214 states "JKM" and Item 27 (RE Code) states "RE-3/RE-3C."

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14, paragraph 14-12b, established policy and prescribed procedures for separating personnel for misconduct because of a pattern of misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

13.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE Codes, based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a 
list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provided that RE Codes may be changed only if they were determined to be administratively incorrect.  

14.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3C applies to persons who did not meet the reentry grade and service criteria at the time of separation.  The person is ineligible for enlistment unless a waiver is granted.

15.  Army Regulation 635-5-1, in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation showed that the SPD for "JKM," as shown on the applicant’s DD Form 214, was appropriate for a Pattern of Misconduct separation and that the authority for discharge under this SPD was Army Regulation 635-200, paragraph 14-12b.

16.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKM" had a corresponding RE Code of "3."   

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.  

2.  The evidence shows the applicant was notified by his unit commander of his intention to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, for habitual misconduct.  The unit commander stated that the applicant had established a pattern of misconduct, even after formal counseling, which rendered him unqualified for further service.

3.  The evidence also shows the applicant acknowledged the proposed separation and waived his rights to appear before a board of officers.  He was discharged on 12 May 1987, under the provisions of Army Regulation 635-200, paragraph 14-12b.  A RE Code of "3" and "3C" were applied to his DD Form 214. 
The evidence further confirms his discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

4.  The applicant contends, in effect, his RE Code 3 and 3C should be changed because he would like to enlist.  The RE Codes of "3" and "3C" are consistent with the basis for his separation and in this case there is no basis to correct the existing codes.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his discharge which resulted in his receiving an RE Code of RE "3" and "3C" was in error or unjust. 

5.  If the applicant wishes to reenlist in the CAARNG, an RE Code of "3" and "3C" are waivable and he should seek the guidance of armed forces recruiters/career counselors in seeking such a waiver, if he is otherwise qualified.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080008240



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ABCMR Record of Proceedings (cont)                                         AR20080008240


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