IN THE CASE OF:
BOARD DATE: 5 May 2009
DOCKET NUMBER: AR20090001229
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 (RE) code be changed.
2. The applicant states that he needs his RE code changed in order to receive education benefits, to reenlist, and to receive other benefits that are warranted under an honorable discharge. He contends that he was unaware of the status of the RE code and that he was given the impression that he would be able to reenlist after two years.
3. The applicant provides a copy of his DD Form 214 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 applicants 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 applicants 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 Regular Army on 12 July 1994 and trained as a food service specialist.
3. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicants DD Form 214 shows that on 28 January 1998 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c(2), for misconduct.
4. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)." Item
26 (Separation Code) on his DD Form 214 shows the entry, "JKK." Item
27 (Reentry Code) on his DD Form 214 shows the entry, "4." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "MISCONDUCT."
5. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code JKK is Misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).
6. 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 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.
7. RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.
8. RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.
9. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.
10. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 20 September 1993, shows that when the Separation Program Designator is "JKK" then an RE code of 4 will be assigned.
DISCUSSION AND CONCLUSIONS:
1. An RE code is not changed for the purpose of obtaining benefits.
2. The applicant's remaining contentions were carefully considered. However, in the absence of evidence to the contrary, it must be presumed that the applicants RE code was administratively correct and in conformance with applicable regulations at the time of his separation.
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.
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ABCMR Record of Proceedings (cont) AR20090001229
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