IN THE CASE OF:	  

		BOARD DATE:	      13 AUGUST 2009

		DOCKET NUMBER:  AR20090001249 


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, that his reentry (RE) code of "3" be changed to an RE code of "1" so that he can return to military service.

2.  The applicant essentially states that he was dealing with a lot of personal issues which caused tension within him, and that he had anger and drinking problems which ultimately led to his general discharge.  He also states that since then he has been working as an armed security officer for a Navy base in Virginia and has managed to work his drinking and anger issues out, and that he recently decided to try and join the Coast Guard.  He continued by essentially apologizing for his actions and expressing his shame and embarrassment for his past behavior, and asks for forgiveness and another opportunity to return to military service.

3.  The applicant provides an undated and unsigned self-authored letter in support of this 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's military records show that he enlisted in the Regular Army on 16 May 2003.  He completed basic and advanced individual training and was awarded military occupational specialty 21M (Firefighter).  He was then reassigned to Fort Drum, New York for what would be his first and only permanent duty assignment.

3.  The applicant's military records also contained a separation packet which shows that the applicant's discharge under the provisions of Paragraph 14-12b (Pattern of Misconduct), Army Regulation 635-200 (Active Duty Enlisted Administration Separations) was approved by the proper separation authority.   The applicant's commander recommended his discharge based on the applicant's numerous offenses, which including driving under the influence on two occasions, breaking restriction, consuming alcoholic beverage while under the legal age of 21, possessing an illegal firecracker, failing to report to his appointed place of duty on seven occasions, failing to pay a debt, having his check-cashing privileges suspended, and making a false official statement.  The 
DD Form 214 that was issued at the time of his discharge on 7 July 2005 essentially shows that he was discharged under the provisions of Army Regulation 635-200, Paragraph 14-12b for misconduct and was issued a General Discharge Certificate.  The Separation Program Designator (SPD) code shown in Item 26 (Separation Code) of his DD Form 214 was “JKA,” which identifies that the applicant was discharged for a pattern of misconduct.  

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Further, it also states that a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

5.  Paragraph 2-1 of Army Regulation 635-5-1 provides that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  This regulation states that SPD code “JKA” is the appropriate code for Soldiers separating under the provisions of AR 635-200, Paragraph 14-12b, for a pattern of misconduct.  

6.  The SPD/RE Code Cross Reference Table establishes RE code "3" as the proper RE code to assign to Soldiers discharged with an SPD of JKA.

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE Codes, including Regular Army 
RE codes.  RE code "3" applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation.  They are ineligible to reenlist unless a waiver is granted.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of "3" should be changed to an 
RE code of "1" so that he can return to military service.

2.  While the applicant's desire to rejoin the military is admirable, it is clear that the applicant was discharged from the Army under the provisions of Army Regulation 635-200, Paragraph 14-12b, for a pattern of misconduct.  The applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process.

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for discharge was based on his discharge under the provisions of Army Regulation 635-200, Paragraph 14-12b.  Therefore, there is no basis upon which to change this reason.  

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant 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 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)                                         AR20090001249



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ABCMR Record of Proceedings (cont)                                         AR20090001249



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