IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20090000700 


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 the Reentry (RE) Code of "4" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a more favorable code that will allow him to again serve in the Armed Forces.

2.  The applicant states that while he would like to say that his RE Code is unjust, he would not be taking full responsibility for his actions.  He goes on to state that not serving his country in the military for the past 10 years has been the biggest mistake of his life.  He also states that he had no idea and could not grasp the impact of his actions.  He now understands all of the errors of his poor decisions and the importance of taking ownership of his mistakes.  He further states that he realizes that his chain of command was trying to help him and did everything in their power to keep him in the military, but at the time, he did not know he would miss the structure, the camaraderie, and protecting and serving his country to the extent that he now does.  He continues by stating that he was following the wrong crowd and not being aware of his actions; however, he is older and has not been involved in any illegal situations since then.

3.  The applicant provides no additional documents with 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 initially enlisted in the U.S. Army Reserve (USAR) on 9 March 1993 and on 12 July 1993, he requested to be discharged from the USAR for the purpose of enlisting in the Regular Army (RA).

3.  On 7 September 1993, he enlisted in the Regular Army for a period of 6 years and training as a software analyst.  He completed his training at Fort Gordon, Georgia and was transferred to Fort Belvoir, Virginia for his first duty assignment.  He was advanced to the pay grade of E-4 on 29 July 1995. 

4.  On 10 January 1996, he was transferred to Hanau, Germany for assignment to a Personnel Services Battalion as a software analyst.

5.  On 25 February 1997, nonjudicial punishment was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty and two specifications of making a false statement regarding the altering of sick slips.  His punishment consisted of a reduction to the pay grade of E-3 and restriction.  The applicant did not appeal his punishment.

6.  On 30 March 1998, the applicant's commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c for misconduct - commission of serious offenses.  He cited as the basis for his recommendation the applicant's wrongful possession of amphetamines, wrongfully making a false statement under oath, making false official statements, and numerous failures to repair.

7.  After consulting with counsel, the applicant acknowledged that he had been advised of and understood his rights.

8.  The appropriate authority approved the recommendation for discharge and directed that the applicant be furnished a General Discharge Certificate.


9.  Accordingly, the applicant was discharged under honorable conditions on
4 June 1998, under the provisions of Army Regulation 635-200, paragraph
14-12c (2) by reason of misconduct.  He had served 4 years, 8 months and
28 days of active service during his current enlistment and was issued a separation program designator (SPD) code of "JKK" and an RE Code of "4."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which 
includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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 processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of RA RE codes.

12.  RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a non-waivable disqualification.  The applicable regulations direct that an RE Code of “4” be issued for an SPD of “JKK,” which indicates separation for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  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 the aforementioned requirement.  

2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights. 

3.  Notwithstanding the applicant’s contention that he has learned his lesson and desires to now serve again,  the applicable regulations indicate that he was properly issued an RE code of “4” and based on his undistinguished record of service and the nature of his misconduct, there appears to be no basis to grant the applicant's request.
4.  Inasmuch as the applicant has failed to show through the evidence submitted or the evidence of record that the RE code issued to him at the time of his separation was in error or unjust, there appears to be no basis to grant his requested relief.

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)                                         AR20090000700



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ABCMR Record of Proceedings (cont)                                         AR20090000700



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