IN THE CASE OF:	  

		BOARD DATE:	      19 MARCH 2009

		DOCKET NUMBER:  AR20080015535 


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 reconsideration of his earlier request that his Reentry (RE) code be changed to RE-1.  

2.  The applicant states that he went to the Puerto Rico National Guard and requested a waiver to reenlist, but he was denied.  He states he was found not guilty of the charges brought against him.  If this action is not taken, he would have to sue to have his rights restored in Federal Court.  

3.  The applicant provides character references; two memoranda, dated 13 April 2005 and 15 December 2005; his election of rights of separation under Army Regulation 635-200, chapter 14, paragraph 14-12(c); a Division Report, dated 28 October 1991; a Police Record Check; a personal statement in support of chapter 14 proceedings; his DD Form 4/1 and 4/2 (Enlistment/Reenlistment Document); his Certificate of Achievement, dated 8 July 1991; and his award certificate for the Army Commendation Medal, dated 29 June 1991, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080005952 on 8 July 2008.

2.  The applicant has provided new arguments and new evidence that will be considered by the Board.  

3.  The applicant enlisted in the U.S. Army Reserve on 22 January 1987.  At the completion of the required training, he was awarded military occupational specialty (MOS) 88M (motor transport operator).  His highest grade attained was specialist, E-4.  

4.  He was ordered to active duty in support of Operation Desert Shield/Desert Storm on 15 January 1991.  He served in Southwest Asia from 7 February through 19 September 1991.  

5.  The CID Interim Report of Investigation, dated 29 November 1991, shows that the applicant was being investigated for stealing one pair of night vision goggles, valued at $4,500.00, and various other miscellaneous government property, valued in excess of $392.32.  He allegedly mailed the property from Saudi Arabia to his private residence in Puerto Rico.  U.S. Custom officials seized the package in the mail containing a pair of night vision goggles.  The interim investigation found that the applicant did not write the questioned address and return address entries on the package; however, the Staff Judge Advocate opined that there was sufficient evidence to title the applicant with larceny, and the investigation was continuing.

6.  On 3 March 1992, the unit commander notified the applicant that he was initiating action to separate the applicant from the Army, under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 14, for the commission of a serious offense.  He indicated that the applicant stole one pair of night vision goggles and other miscellaneous government items and mailed them to his private residence in Puerto Rico.

7.  There is no evidence of record which shows the applicant was found not guilty of the charges brought against him.  

8.  On 27 March 1992, the separation authority approved the applicant's discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 14, for the commission of a serious offense.
The applicant was assigned a Separation Program Designator (SPD) code of "JKQ."  The entry in Item 27 of his DD Form 214 for RE code shows "NA (Not Applicable)."

9.  In a 13 April 2005 memorandum, the Military Entrance Processing Station (MEPS) San Juan, PR was informed that the 432nd Transportation Company had a vacancy position for the applicant and that he was MOS (88M1O) qualified.  
10.  The applicant provided a Police Record Check, dated 13 May 2005.  The appropriate authority placed an "X" beside "No" in Block 12 (Has The Applicant A Police Or Juvenile Record, To Include Minor Traffic Violations?) and included the comments "NO CRIMINAL RECORD."  An "X" was placed beside "No" in Block 13 (Is Applicant Now Undergoing Court Action Of Any Kind?).

11.  In a 15 December 2005 memorandum, the MEPS San Juan, PR was informed that the 346th Transportation Company had a vacancy position for the applicant and that he was MOS (88M1O) qualified.  

12.  The applicant provided character references in support of his claim.  The individuals stated, in effect, that they have personally known the applicant for several years.  He is described as being a hard worker, a responsible person, a good neighbor, an outstanding citizen, and a trustworthy person.  

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The RE code is entered in Item 27 of the DD Form 214.  The RE code is not applicable for officers, U.S. Military Academy (USMA) cadets who fail to graduate or enter the USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause. 

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and 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, 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.  

15.  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.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5 (Separation Documents) establishes RE Codes to be assigned for each SPD.  


16.  A separation code of "JKQ" applies to persons who were separated under the provisions of chapter 14, Army Regulation 635-200, for misconduct – commission of a serious offense.  The SPD/RE Code Cross Reference Table shows that an RE code of 3 is the applicable RE code assigned for individuals separated by reason of misconduct – commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged on 23 April 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  Although the applicant contends that he was found not guilty of charges brought against him, there is no evidence of record which substantiates his claim.  

2.  The applicant states that he went to the Puerto Rico National Guard and requested a waiver to reenlist, but he was denied.  However, he has not provided evidence to support that he was denied a waiver by the Puerto Rico National Guard.  

3.  The applicant's DD Form 214 currently reflects that he was not assigned a RE code in item 27.  However, as indicated in the previous case, if he had been assigned an RE code as required by the governing regulations, it would have been an RE code of RE-3 meaning that he was not qualified for continued Army service, but the disqualification is waivable.  To assign an RE Code of RE-3 at this time would still result in a less favorable action to the applicant.  Therefore, there is no basis upon which to assign an RE code of RE-1 because the RE code is based on the narrative reason for discharge, and his reason for discharge is fully supported in the official record.

4.  The applicant's character references were noted.  However, they are not sufficiently mitigating to grant relief in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR, 20080005952, dated 8 July 2008.




      _______ _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)                                         AR20080015535



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ABCMR Record of Proceedings (cont)                                         AR20080015535



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