IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090005774 


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 the reentry eligibility (RE) code that he was assigned when he was discharged from the Regular Army (RA) on 8 November 1985 be changed from RE-3 to RE-1.

2.  The applicant states he needs his RE code changed so he can apply for Active Guard Reserve (AGR) positions.  He states he was unaware that he could apply to have his RE code changed automatically within 6 months of his discharge.  He states he "was unaware that the board (specific board not specified) would take into consideration something from 24 years back."  He states he has two other DD Forms 214 (Certificate of Release or Discharge from Active Duty) and he will have a third DD Form 214 upon completion of his current deployment.

3.  The applicant provides, in support of his application, copies of his DD Forms 214 with separation dates of 8 November 1985, 12 December 2004, and
3 January 2008; his National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History Statement), prepared on 11 July 2008; five DA Forms 2166 (NCO [noncommissioned officer) Evaluation Report); and two letters of recommendation.

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 erroror 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 personnel records show he initially enlisted in the RA on 30 November 1983 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MSO) 13F (Fire Support Specialist).

3.  On 24 October 1985, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance.  The letter states that the proposed action was being taken due to the applicant's history of financial problems including several instances of failure to pay his just debts and several instances of his writing bad checks.

4.  The commander's letter advised the applicant of his right to have his case considered by a board of officers (if he would have 6 or more years of total active and reserve military service at the time of his separation); to appear in person before a board of officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers.

5.  On 30 October 1985, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant waived counsel and he did not submit a statement in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

6.  On 30 October 1985, the applicant's commander recommended him for discharge due to unsatisfactory performance and requested that waiver of rehabilitative transfer be granted.  The commander stated the applicant had a serious problem with debt management and it greatly affected his duty performance.

7.  On 30 October 1985, the appropriate authority waived rehabilitative 
transfer, approved the recommendation for discharge under the provisions of chapter 13 of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate.

8.  On 8 November 1985, the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.   He had completed 1 year, 11 months, and 9 days of active service that was characterized as under honorable conditions.  An RE code of 3 was assigned.

9.  The applicant's military personnel records show he enlisted in the Michigan Army National Guard (MIARNG) on 31 August 2000.  The applicant completed two periods of active duty from 30 January 2003 to 12 December 2004 (not assigned an RE code) and from 1 June 2007 to 3 January 2008 (assigned an RE-1).

10.  The DA Forms 2166 submitted by the applicant cover the period from December 2004 to 30 November 2008.  In all cases, the applicant's Senior Rater marked him as successful in overall performance and superior in overall potential for promotion and/or service in positions of greater responsibility.

11.  The applicant submitted two letters of reference from two Army captains.  The letters indicate the applicant displays the leadership, responsibility, and integrity to excel in the next higher rank .  The letters also attest to the applicant's leadership skills and his technical proficiency in his position.

12.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

13.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army  Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE codes.  

14.  Table 3-6 of Army Regulation 601-210, then in effect, provided that RE-1 applied to persons completing an initial term of active service who were fully qualified for continued Army service when last separated and that RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable. 

15.  Table 4-1 of Army Regulation 601-210, then in effect, listed waivable moral and administrative disqualifications.  Line O of Table 4-1 provided that being separated by reason of unsatisfactory performance was a waivable disqualification.  Line AE of Table 4-1 provided that receiving a general discharge under honorable conditions when last separated from the U.S. Army is a waivable disqualification.  

16.  Paragraph 3-10 of Army Regulation 601-210, then in effect, provided that 
RE codes may be changed only if they are determined to be administratively incorrect.  

DISCUSSION AND CONCLUSIONS:

1.  The U.S. Army does not have, nor has it ever had, a policy to automatically change RE codes.  RE codes are assigned based on the Soldier's service records or the reason for discharge.

2.  The applicant was notified of the reason for his discharge in 1985 and advised of his rights.  He waived all of his rights and he did not submit any statements in his own behalf.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  The applicant's initial term of active service was 4 years.  RE-1 applies to persons completing an initial term of active service who were fully qualified for 
continued Army Service when last separated.  The applicant did not complete his initial term of enlistment and he was not fully qualified for reenlistment.  Therefore, the applicant is not entitled to receive an RE-1.
4.  The applicant was discharged with a general, under honorable conditions discharge by reason of unsatisfactory performance.  Both of these factors are waivable disqualifications for enlistment.  An RE code of 3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  Therefore, the assignment of RE-3 is administratively correct.

5.  The applicant's documented success since enlisting in the MIARNG is noted.  However, the ABCMR does not change records solely for the purpose of establishing eligibility for other programs.  In addition, the ABCMR does not change records solely based on the passage of time.

6. 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 that requirement.

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)                                         AR20090005774



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ABCMR Record of Proceedings (cont)                                         AR20090005774



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