IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001359 


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 his reentry eligibility (RE) code be changed from RE-3 to RE-1 so he may reenter military service.

2.  The applicant states that he was too young at the time to realize how honorable it was to be a member of the Armed Forces and would like to reenter military service with a clear and mature mentality.  He is perfectly fit to serve in the Army again and would like to support the troops physically and not just by saying so.  He asks that the Board give him a second chance.

3.  The applicant did not provide any additional documentary 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.  The applicant's records show he was born on 5 September 1959 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 17 September 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 82C (Field Artillery Surveyor).  The highest rank/grade he attained during his military service was private first class/
E-3.

3.  The applicant’s records also show he was awarded the Air Assault Badge, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not reveal any achievements or special recognitions during his military service.

4.  On 1 June 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being derelict in the performance of his duties in that he failed to remain awake on guard duty on or about 19 May 1978.  His punishment consisted of 10 days of extra duty.

5.  The applicant’s records show that he was counseled on numerous occasions for various reasons, including counseling on 3 July 1977 for failure to report and refusal to perform his duties, on 30 November 1977 for job performance, on 31 December 1977 for failure to report, on 20 May 1978 for sleeping on guard, and on 12 June 1978 for failure to report.

6.  On 28 June 1978, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations) by reason of apathetic attitude and inability to adjust to military life.

7.  On 28 June 1978, the applicant acknowledged notification of his proposed discharge from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200 and voluntarily consented to this discharge.  He further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life and that he understood he could, prior to the date the discharge authority approved the discharge, withdraw his voluntary consent to the discharge.  He also declined to submit a statement on his own behalf.

8.  On 28 June 1978, the applicant’s immediate commander initiated separation action against the applicant under the provisions of paragraph 5-31 of Army Regulation 635-200.  The immediate commander cited the applicant’s lack of self-discipline as indicated by being caught shoplifting at the Post Exchange in April 1977, inability to adapt socially or emotionally as indicated by a letter of reprimand for shoplifting at Grandpa’s, and failure to demonstrate promotion potential as indicated by poor performance while sleeping on guard.  The immediate commander further recommended a General Discharge Certificate.

9.  On 29 June 1978, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  On 10 July 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 1 year, 9 months, and 24 days of creditable active military service.  Item 10 (Reenlistment Code) of his DD Form 214 shows the entry "3."

10.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 635-200 provides 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 (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 Regular Army RE codes.  An RE-1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated and RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be changed from RE-3 to RE-1 so he may reenter military service.

2.  The evidence of record shows that the applicant was 17 years of age at the time of his enlistment and 18 to 19 years of age at the time of his acceptance of nonjudicial punishment and multiple counseling sessions.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record shows that the applicant voluntarily consented to his discharge under the Expeditious Discharge Program.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.

4.  The evidence of record further confirms that the applicant’s RE code was assigned based on the fact that he was separated under the provisions of paragraph 5-31 of Army Regulation 635-200 by reason of apathetic attitude and inability to adjust to military life.  The RE code associated with this type of discharge is RE-3.  Therefore, the applicant received the appropriate RE code associated with his discharge.

5.  The applicant’s current maturity, physical fitness, patriotism, and noble desire to support the troops are noted; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.

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.

ABCMR Record of Proceedings (cont)                                         AR20090001359



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ABCMR Record of Proceedings (cont)                                         AR20090001359



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