IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090005832 


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 Reentry (RE) Code be changed from RE-3 to RE-1.
 
2.  The applicant states his discharge was upgraded to honorable.  He made a big mistake when he went absent without leave (AWOL).  He is now regretting it every minute.  He wants to reenter the Army to finish what he started.

3.  The applicant provides no additional documentary evidence 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 he enlisted in the Regular Army (RA) on 2 July 1996 and he reenlisted on 2 November 1998.  He was awarded military occupational specialty (MOS) 13E (cannon fire direction specialist).  He was promoted to the rank/grade of sergeant (SGT)/E-5) on 4 October 2000, which is the highest grade he held during his tenure of service.

3.  The applicant's discharge packet is not contained in his available records.  However, his original DD Form 214 shows he was discharged on 16 June 2003 with a characterization of service of under honorable conditions (general) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2) after completing 6 years, 1 month, and 13 days of active military service with 303 days of lost time due to AWOL.

4.  On 9 May 2006, the Army Discharge Review Board (ADRB) granted an upgrade of the applicant's characterization of service to fully honorable based on the unit commander using "Board Procedures" when notifying the applicant that he was initiating action to separate him under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct.  By using "Board Procedures" the authority for approval of the applicant's separation rested with the General Court-Martial Convening Authority.  The ADRB case report and directive indicate the evidence of record showed that someone other than the General Court-Martial Convening Authority approved the applicant's discharge.  The ADRB changed the narrative reason for separation to "Secretarial Authority" and the separation code to "JFF."  However, the ADRB did not change the applicant's RE code, indicating the determination that he was not considered fully qualified for reentry or continuous service at the time of separation was fully supported by the record and therefore remained both proper and equitable.  The remarks block on his reissued DD Form 214 contains in item 18 (Remarks) the entry "CHARACTERIZATION OF SERVICE UPGRADED ON 9 MAY 2006 FOLLOWING APPLICATION DATED 23 SEPTEMBER 2005."

5.  The ADRB Case Report and Directive shows that the applicant had 303 days of lost time due to being AWOL.  It further shows that he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions: on 13 December 2001 for unlawfully entering the first sergeant's office and using the phone to make unauthorized long-distance personal phone calls and on 19 May 2003 for being AWOL.

6.  The ADRB case report indicates the evidence of record shows that on 3 June 2003, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct - commission of a serious offense (AWOL from 18 June 2002 to 
15 April 2003), with a general, under honorable conditions discharge.  The ADRB case report indicates the applicant was advised of his rights, he consulted with legal counsel, he was advised of the impact of the discharge action, he waived consideration by an administrative separation board, and he did not submit a statement in his own behalf.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 14, in effect at that time, applied to separation for misconduct.  At that time, paragraph 14-12c provided for the separation of personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides that RE codes may be changed only if they are determined to be administratively incorrect.

8.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve Components.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.  The code of RE-1 is assigned to individuals who complete an initial term of active service and who were fully qualified to reenlist when last separated.  This regulation also states that an RE-3 code applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), table 2-3, states that the SPD code JFF denotes Secretarial Authority.  The SPD/RE Code Table directs that the SPD "JFF" be assigned the RE code "TBD."  When the table specifies “TBD” (to be determined), the directive authorizing the separation program or specific separation will provide the RE Code. 

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's characterization of service was upgraded by the ADRB, the ADRB indicated their action did not entail a change to the applicant's RE Code.  The SPD/RE Code cross reference table states that the approval authority for a separation under Secretarial Authority will direct which RE Code to assign.  As such, the applicant's RE-3 Code is properly entered on his DD Form 214.
2.  While the applicant's desire to enlist is commendable, a presumption of regularity must be applied in this case, that what the Army did was correct.  The burden of proving otherwise rests with the applicant.

3.  The applicant is advised that although his RE-3 was properly assigned, this does not mean that he is totally disqualified from returning to military service.  The disqualification upon which the RE-3 codes were based may be waived for enlistment purposes.  The applicant is further advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These 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)                                         AR20090005832



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ABCMR Record of Proceedings (cont)                                         AR20090005832



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