IN THE CASE OF:	  

		BOARD DATE:	        17 September 2008

		DOCKET NUMBER:  AR20080011093


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 separation (SPD) code and reentry (RE) code be changed.  He also requests correction of his separation pay.

2.  The applicant states, in effect, that there is no reason for him to be given the codes that he received.  He served his country proudly and he did what was asked of him.  He states that, because of his assigned codes, he was given an incorrect amount of separation pay.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty) and his DD Form 215 (Correction to DD Form 214).

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 in the US Army Reserve Delayed Entry Program (DEP) for 6 years on 30 October 1982.  On 19 January 1983, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 20 January 1983.  On 12 January 1985, he reenlisted for 5 years, making his expiration term of service (ETS) date 11 January 1990.  He was extended beyond his ETS date due to "stop loss" measures imposed as a result of the Persian Gulf War.

3.  The applicant was trained in career management field (CMF) 31 (Signal Operations) and served in signal units in the United States, Germany and the Southwest Asia (SWA).  He served in SWA from on/about 25 February 1991 to on/about 15 April 1991. 

4.  While in Germany, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 31 May 1988, for a spouse abuse/domestic violence offense wherein he struck his wife during a dispute.  As a result of that incident, a bar to reenlistment was initiated against him which remained in effect until 20 November 1990.

5.  When "stop loss" was lifted, the applicant was allowed to separate on 17 July 1991 by reason of ETS under the provisions of chapter 4, Army Regulation 
635-200.  His DD Form 214 shows his SPD code as "JBK" and his RE code as "3C."

6.  On 18 March 1994, the applicant was given a DD Form 215 showing he received separation pay in the amount of $11,789.73.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of the regulation then in effect provided that a Soldier would be separated upon ETS, or fulfillment of his or her service obligation.  Soldiers separated under chapter 4 will be awarded an honorable character of service.  The assignment of SPD and RE codes are determined by other regulations.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA 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.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

9.  Army Regulation 635-5-1 (Separation Program Designator (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.  

10.  A separation code of "JBK" applies to persons involuntarily discharged upon completion of required service.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 is the applicable RE code assigned for individuals involuntarily separated at ETS.  An RE code of 3 indicates that the applicant was separated from his last period of service with a waivable disqualification which makes him ineligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his SPD and RE codes changed.

2.  The codes shown on the applicant's DD Form 214 are correct for the narrative reason and authority indicated.  It cannot be determined why he was discharged involuntarily at ETS; however, the Board presumes regularity in the discharge process.

3.  It appears the applicant was paid the correct amount of separation pay, as is reflected on the DD Form 215, dated 18 March 1994.  He has not shown otherwise.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080011093



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ABCMR Record of Proceedings (cont)                                         AR20080011093



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