IN THE CASE OF:	  

		BOARD DATE:	       2 APRIL 2009

		DOCKET NUMBER:  AR20080012259 


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 that his reentry eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "RE-4" to "RE-3."

2.  The applicant states, in effect, that he has heard that individuals with felony convictions are being permitted to enlist in the Army.  He states that he does not have any felony convictions but his RE code is preventing him from returning to military service.  He states he wants to serve his country honorably and believes his skills as a medic and theologian are critically needed by the Army.  However, he cannot return to military service with the RE code he currently has.

3.  The applicant provides no additional 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.  Records available to the Board indicate the applicant entered active duty as a Regular Army enlisted Soldier on 26 July 1983 after approximately 2 years in the U.S. Army Reserve.  Having been previously trained as a medical specialist, the applicant, upon enlistment in the Regular Army, was assigned to a medical company at Fort Bragg, North Carolina.

3.  By July 1984 the applicant had been promoted to the rank of specialist (E-4) and was awarded an Army Achievement Medal for meritorious achievement on 18 April 1984.  In May 1985 he was punished under Article 15 of the Uniform Code of Military Justice for dereliction of duty when he failed to follow proper procedures in signing out weapons.  His reduction to the rank of private first class, which was initially suspended, was vacated in June 1985 when he failed to secure the arms room.

4.  In December 1985 the applicant was found guilty by a special court-martial of wrongfully disposing of explosive material by selling military property in excess of $100.00.  His sentence included confinement for 4 months, a forfeiture of $400.00 pay per month for 4 months, reduction to pay grade E-1, and a bad conduct discharge.

5.  On 23 January 1986 the sentence was approved and on 3 April 1986 the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 22 July 1986, the sentence having been affirmed pursuant to Article 66 and Article 71(c) having been complied with, the sentence was ordered to be executed.

6.  Accordingly, on 1 August 1986 the applicant was discharged from the Army with a bad conduct discharge in pay grade E-1 pursuant to the sentence of a special court-martial.  The applicant was assigned a separation program designator (SPD) code of "JJD" and an RE code of "4."

7.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation showed that the SPD code "JJD" as shown on the applicant’s DD Form 214 was applicable to Soldiers whose narrative reason for discharge was "as a result of court-martial."

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) notes that individuals last separated from active duty in pay grade E-1 with more than 6 months of total active service are precluded from returning to military service if their prior service was not characterized as honorable.

9.  Paragraph 3-22 (U.S. Army RE Codes) of Army Regulation 601-210 provides that "RE-4" applies to a person separated from his or her last period of service with a non-waivable disqualification.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 23 April 1993, the ADRB reviewed the applicant's request and determined that the applicant's discharge was proper and equitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his RE code of "4" be changed so that he may return to active duty to serve his country was considered; however, it does not serve as a basis to change a properly assigned RE code regardless of the Army’s current enlistment policies.

2.  There is no evidence or indication that there was an error or injustice in the applicant’s bad conduct discharge resulting from a special court-martial.  Since the applicant was properly discharged, there is no reason to change a correctly assigned RE code.

3.  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.



      _________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)                                         AR20080012259



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012259



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1