IN THE CASE OF:	  

		BOARD DATE:	  	 12 November 2008

		DOCKET NUMBER:  AR20080014891 


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, an upgrade of his reentry (RE) code of RE-3 to an RE-1.  

2.  The applicant states, in effect, that after serving almost 9 years in the Army and receiving a discharge under honorable conditions, his reenlistment code should be an RE-1.

3.  The applicant provides no additional documents in support of his case.

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 available record shows that he reenlisted in the Regular Army and on 20 April 1978 with 2 years, 9 months and 23 days of prior active service.  He was trained in and awarded military occupational specialty (MOS) 91B (Medical Specialist) and the highest rank he attained while serving on active duty was pay grade E-5.  The record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  The available evidence shows that between September 1982 and April 1983 while assigned to Rock Island Arsenal Medical Clinic, Rock Island Illinois, the applicant systematically robbed patients of money. 

4.  On 22 June 1983, the applicant was convicted by a Special Court-Martial for five specifications of stealing United States currency from five different individuals.  He was sentenced to reduction to pay grade E-1, a forfeiture of $369.00 pay per month for 6 months and to perform hard labor without confinement for 3 months.    

5.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a separation document (DD Form 214) that shows he was discharged on 8 June 1984, under the provisions of chapter 13, Army Regulation 635-200 with an under honorable conditions discharge.  The DD Form 214 that he was issued confirms he completed a total of 8 years, 
11 months and 12 days of creditable active military service.  The DD Form 214 also shows that based on the authority and reason for separation, he was assigned a separation program designator (SPD) code of JHJ and an RE code of RE-3.  

6.  Chapter 13, Army Regulation 635-200 (Personnel Separations) applied to separation for unfitness and unsuitability.  At that time, this regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

7.  The applicant authenticated his 8 June 1984 DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

8.  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 and processing into the Regular Army (RA) and the US 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-3 applies to persons who have a waivable disqualification and RE-4 applies to persons who have a non-waivable disqualification.  

9.  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.  The SPD code of JHJ is the appropriate code to assign Soldiers separated under the provisions chapter 13, Army Regulation 635-200 by reason of unsatisfactory performance.  

10.  In September 1987, the ADRB denied the applicant's request for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  Although, the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; it does contain a properly constituted DD Form 214 that identifies the character of service, separation code and the reenlistment code.

2.  The applicant’s contentions were carefully considered.  However, by regulation, the code of RE-3 is the proper code to assign members separated under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  As a result, the assigned code of RE-3 and the narrative reason for separation were appropriate at the time and are still appropriate.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the assignment of his SPD and RE codes.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  RE-3 applies to persons whose disqualification is waviable.  Local recruiting personnel have the responsibility for determining whether an individual meets the current enlistment criteria and that recruiting personnel are required to process a request for waiver.  There is no evidence that he has ever requested such a waiver.

5.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20080014891



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ABCMR Record of Proceedings (cont)                                         AR20080014891



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