IN THE CASE OF:	  

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080010944


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) Code be changed from RE-4 to RE-3 or RE-2.

2.  The applicant states, in effect, he would like his RE Code corrected so that he can rejoin the military.  He also states that he proudly served in the US Army from 1996 to 2000 as a food service specialist and served in Germany, Hungary, and Budapest.  Unfortunately, he found himself in a precarious situation with his ex-wife and this accompanied with his youthful behavior caused his separation from the military.  When he joined the Army he had plans of making a career of being a Soldier and eventually retiring.  Since his departure from the Army, he has worked diligently to learn from his past mistakes and he has worked to improve the quality of his life and the lives of his children.  He is a single father and has embarked on post-secondary education to obtain his bachelor’s degree in Business Management.  

3.  The applicant provides no additional documentary 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's military records show he enlisted in the Army Delayed Entry Program on 17 January 1996.  He enlisted in the Regular Army, in pay grade
E-1, on 16 February 1996.  He was promoted to pay grade E-4 on 1 August 1997.  He reenlisted for 3 years on 17 February 1998.

3.  On 27 October 1999, the applicant's unit company commander notified him that she was initiating action to discharge him from the US Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct/conviction by civil court.  The unit commander stated the reasons for the proposed action was that he had committed misconduct/conviction by civil court consisting of violation of a restraining order on or about 18 March 1999, and committed domestic violence and harassment on or about 4 November 1998.  The unit commander recommended the applicant receive a general discharge.

4.  On 29 October 1999, the applicant, after consulting with counsel, acknowledged receipt of notification of the proposed separation action and requested his case be considered by an administrative separation board.  

5.  On 2 November 1999, the applicant's commander recommended approval of the request for the applicant’s separation under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-5, with an under other than honorable conditions discharge.  The commander stated that the applicant was a repeated domestic abuser who had been availed every counseling/rehabilitation program offered.  After a six-month residence in a half-way house and with full knowledge of the repercussions of continued predatory/abusive behavior, the applicant again assaulted his wife.  The commander also stated that circumstances surrounding the applicant’s discharge would entitle his family to transitional assistance.  

6.  On 8 November 1999, the applicant’s separation action, with the recommendation for separation with an under other than honorable conditions discharge, was forwarded to the general court-martial convening authority for action.  

7.  On 10 November 1999, the appropriate authority directed an administrative board convene to decide whether the applicant should be discharged for misconduct/conviction by civil court.

8.  On 1 December 1999, the applicant was advised of the proposed board and acknowledged the notification on 2 December 1999.

9.  On 15 December 1999, the applicant, after consulting with counsel, waived consideration of his case by an administrative separation board.  He acknowledged that his brigade commander was recommending an other than honorable conditions discharge and the discharge authority could approve such a discharge in his case.

10.  On 17 December 1999, the appropriate separation authority approved the applicant’s discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

11.  The applicant was discharged, in pay grade E-4, on 5 January 2000, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct, with an under other than honorable conditions discharge.  He was credited with 3 years, 10 months, and 20 days total active service.  Item 26 (Separation Code), of his DD Form 214 states "JKB” and Item 27 (RE Code) states "RE-4."  

12.  On 25 June 2004, the Army Discharge Review Board (ADRB) upgraded the characterization of his service to general, under honorable conditions.  The ADRB determined that the reason for his discharge was both proper and equitable and voted not to change it.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, paragraph 5, establishes policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

14.  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 Reserve.  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 could be changed only if they are determined to be administratively incorrect.  

15.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 4 are ineligible for enlistment.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-2 applies to Soldiers being separated before completing a contract period of service whose reenlistment is not contemplated.

16.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes will be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

17.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons.  The regulation shows that the SPD of “JKB” as shown on the applicant’s DD Form 214 is appropriate when the narrative reason for discharge is “misconduct” and the authority for discharge is Army Regulation 635-200, Chapter 14. 

18.  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 SPD codes with their corresponding RE code.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of “JKB” has a corresponding RE Code of “3.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged on 5 January 2000, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5.  He was issued a Separation Code of "JKB" that has a corresponding RE Code of "3."  However, his DD Form 214 shows an RE Code of "4." 

2.  The applicant's RE Code of "4" is not consistent with the basis for his separation.  Therefore, it is recommended that the applicant's records be corrected to show the RE Code of "3" which is consistent with the basis for his separation.  It would now be appropriate to change item 27, of his DD Form 214, to show a reentry code of "3."
3.  It is apparent that the applicant now wishes to reenter the military and would like to continue to serve the nation; however, his currently shown RE Code of "4" prevents him from reenlisting.

4.  The applicant's contention that his RE Code be changed to RE Code 2 was also considered; however, his records and his application do not support a change in his RE Code to “2."

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 showing a reentry code of "3" in item 27 (Reentry Code) of his DD Form 214, dated 5 January 2000.

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 correcting his reentry code to “2” on his DD Form 214. 




      __________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)                                         AR20080010974



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ABCMR Record of Proceedings (cont)                                         AR20080010944


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