IN THE CASE OF:	  

		BOARD DATE:	        7 May 2009

		DOCKET NUMBER:  AR20090001735 


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 entry (RE) code of RE-4 be upgrade to RE-3.

2.  The applicant states, in effect, that he believes that at the time of discharge he was given the wrong reentry code of 4. 

3.  The applicant provides no additional documents 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 military records are not available to the Board for review.  However, there were sufficient documents from the Army Discharge Review Board (ADRB) case report and directive for the Board to conduct a fair and impartial review of this case.  This case is being considered using primarily the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and the ADRB case report.

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 27 October 1992.  He successfully completed basic training and advanced individual training, and was awarded military occupational specialty (MOS) 31U (Signal Support Specialist).  The highest grade he attained was pay grade E-4.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between November 1995 and June 1996, for assaulting another Soldier and for two incidents of failure to repair.  His punishment included forfeitures, restrictions, extra duties, and a reduction to pay grade E-1.  The applicant was also counseled for a number of disciplinary infractions by members of his chain of command. 

5.  On 24 July 1996, the applicant was informed of his unit commander's intent to process him for separation under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct – pattern of misconduct for having received three Article 15's and numerous counseling statements and that he be discharged with a general under honorable conditions discharge.  

6.  The applicant was advised of his rights and the applicant waived his rights to consult with legal counsel.  The applicant was advised of the impact of the discharge action, and he submitted a statement in his own behalf (the statement is missing from his file).  

7.  On 7 August 1996, the separation authority waived further rehabilitative efforts and approved the applicant's discharge and directed the applicant be discharged with a characterization of service general, under honorable.  

8.  On 19 August 1996, the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct.  The DD Form 214 he was issued at the time shows that he was assigned a Separation Program Designator (SPD) code of JKA and an RE code of RE-4.  The DD Form 214 also shows he held the rank of private/E-1 (PV1) and that he had completed a total of 3 years, 9 months, and 23 days of creditable active military service.  

9.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKA is the appropriate code to assign Soldiers separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table) establishes RE-3 as the proper reentry code to assign to Soldiers separated with an SPD code of JKA.  

11.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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 RA RE codes.  RE-3 applies to persons completing their terms of service who are not considered fully qualified for reentry or continuous service at the time of separation but the disqualification is waivable.
RE-4 applies to persons who are permanently disqualified for continued Army service.

12.  On 9 January 2008, the ADRB after careful review, determined that the applicant's characterization of service was too harsh and as a result voted to grant full relief and upgraded the applicant's characterization of service to fully honorable.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded because he believes he was given the wrong reentry code of 4 was carefully considered and found to have merit.  

2.  By regulation, the proper RE code assignment for members separated under provisions that authorize an assignment of the SPD code of JKA is RE-3.  Item 27 of the applicant's DD Form 214 was erroneously annotated with an RE-4 code.  Therefore, it would be appropriate to correct his DD Form 214 to read   RE-3 in Item 27.


BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
amending Item 27 of his DD Form 214 to read RE-3 vice RE-4 as is currently listed.  




      _______ _   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)                                         AR20090001735



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ABCMR Record of Proceedings (cont)                                         AR20090001735



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