DOCKET NUMBER:  AR20090001726 


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 uncharacterized discharge be changed to an honorable discharge.

2.  The applicant states, in effect, after only a few weeks in Basic Training he injured his hip, went to see a physician, and was told that he had a fracture and needed a bone scan.  He also states that he waited two weeks to get the bone scan, missed training during this period, and when he got the results of the bone scan he learned that he did not have a fracture.  He further states that he was still having pain and was sent to physical therapy; however, nothing was found wrong with him.  The applicant adds that he was told he would either be recycled in Basic Training or discharged from the Army and, at the time, he thought the best thing for him was to be discharged.  The applicant concludes by stating he is interested in reentering the military; however, he is having trouble enlisting because he has a Reentry Eligibility (RE) code of RE-3.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of
8 years on 25 April 2006 in the Delayed Entry Program (DEP).  He was discharged from the DEP on 8 May 2006 and enlisted in the Regular Army (RA) on 9 May 2006 for a period of 3 years.

2.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 14 July 2006, shows nonjudicial punishment was imposed by the battalion commander against the applicant for insubordinate conduct toward a noncommissioned officer and failure to obey an order.  His punishment consisted of forfeiture of $589.00 per month for two months and
45 days of restriction to the company area.

3.  On 18 July 2006, the applicant’s company commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter
11 (Entry Level Performance and Conduct), paragraph 11-3, for failure to adapt to the military environment.  The letter of notification shows the applicant was advised of his rights.  The commander also stated that he was recommending the applicant receive an uncharacterized entry level separation.

4.  On 24 July 2006, the applicant confirmed he was advised by the company commander of the basis for the contemplated action to separate him from the Army with an entry level separation - uncharacterized.  The applicant also acknowledged with his signature that he had been afforded the opportunity to consult with appointed counsel and that he declined the opportunity to do so.  The applicant waived his rights in writing, waived consulting counsel, and elected not to submit statements in his own behalf.  In addition, the applicant elected not to have a medical examination before his discharge.

5.  On 27 July 2006, the applicant’s company commander recommended the applicant's separation from service under the provisions of Army Regulation
635-200, chapter 11, prior to his expiration term of service with an entry level status separation, and forwarded the separation action to the approving authority. The basis for the commander’s recommended action was the applicant’s failure to adapt to the military environment (i.e., disciplinary infractions) after having been counseled and refusing to train.  The company commander also requested that rehabilitative transfer of the applicant be waived.  On 28 July 2006, the battalion commander recommended approval of the applicant's separation.

6.  On 1 August 2006, the separation authority approved waiver of the applicant’s rehabilitative transfer; approved the discharge under the provisions of Army Regulation 635-200, chapter 11, paragraph 11-3a; and directed the applicant be issued an entry level separation - uncharacterized.

7.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 9 May 2006 and was separated from the RA on 23 August 2006 with an uncharacterized discharge, under the provisions of Army Regulation 635-200, chapter 11, based on entry level performance and conduct.  At the time he had completed 3 months and 15 days of net active service.  Item 27 (Reentry Code) shows the applicant was issued RE Code "3".

8.  Army Regulation 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel.  Chapter 11 set forth policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status.  This policy applied to RA, Army National Guard (ARNG), and USAR personnel who were in an entry level status and, before the date of initiation of separation action, had completed no more than 180 days of creditable continuous active duty or initial active duty for training, or no more than 90 days of Phase II under a split or alternate training option.

9.  Army Regulation 635-200, paragraph 3-7 (Types of administrative discharges/ character of service), in pertinent part, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  This paragraph also provides that only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reason for separation, unless an entry level status separation (uncharacterized) is warranted.

10.  Army Regulation 635-200, paragraph 3-9 (Uncharacterized separations), provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.  This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier’s entry on active duty.
 
11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  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.

12.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the U.S. Armed Forces are categorized as prior service (PS) personnel.  The applicant's military records show that he qualifies as prior service.)

13.  Army Regulation 601-210 also prescribes eligibility criteria governing the enlistment of persons, with or without PS, into the RA and the USAR.  Paragraph 3-20 (Verification of PS) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had, PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

14.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their 
acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless 
indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the USAR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate email address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

15.  The governing Army regulation further provides that PS Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the
RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, USA HRC, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."
16.  There is no evidence in the applicant's military service records that shows he applied for a waiver of his RE Code to reenter the U.S. Army and/or that his request was denied.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his uncharacterized discharge should be changed to an honorable discharge because he is interested in reentering the military and is having trouble enlisting because he has an RE Code of RE-3.

2.  The evidence of record shows that a separation will be described as an entry level separation with service uncharacterized, if separation action is initiated while a Soldier is in entry level status (i.e., has completed no more than 180 days of creditable continuous active duty).

3.  The evidence of record shows that the applicant entered active duty on
9 May 2006, was discharged on 23 August 2006, and he completed 3 months and 23 days (i.e. 113 days) of net active service during this period.  Thus, the evidence of record confirms the applicant was in an entry level status and his character of service is correctly recorded as “uncharacterized” on his DD Form 214.  Therefore, he is not entitled to correction of the character of service recorded on his DD Form 214 with an effective date of 23 August 2006.

4.  The evidence of record shows the RE Code that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the assigned RE Code of “3” was and remains valid.  Therefore, there is no basis to change the applicant’s RE Code.

5.  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 this requirement.

6.  It appears from the applicant's application that he believes he may obtain a waiver of his RE Code from the Army Board for Correction of Military Records.    However, the evidence of record shows that individuals, including PS personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.

7.  Accordingly, the applicant is advised that, although no change is being recommended to his RE Code, this does not mean that he is disqualified from enlistment in the U.S. Army, as the RE-3 code he was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, he should contact a local recruiter to determine his eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a PS member as to the needs of the Service and are required to process waivers of RE codes.

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)                                         AR20090001726



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ABCMR Record of Proceedings (cont)                                         AR20090001726



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