IN THE CASE OF:	  

		BOARD DATE:	        24 September 2009

		DOCKET NUMBER:  AR20090006211 


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 Eligibility (RE) Code be changed.

2.  The applicant states that he applied to the Army Discharge Review Board (ADRB) for upgrade of the character of his service and his request was approved on 10 August 2006.  He states that he also wanted his RE Code changed so he could reenter the military; however, the ADRB did not change his RE Code.

   a.  He states he constantly looks back on the mistake he made and wishes he could go back and make a different decision.  He adds that he wants to be able to serve his country again.

   b.  The applicant states, in effect, he hopes the Board will take into consideration his military service up to the point of his mistake and they will see that he was a great Soldier.  He concludes by stating he is hopeful he will be given the opportunity to reenter the military.  He believes that he may be able to counsel young Soldiers on making better decisions than he made.

3.  The applicant provides, in support of his application, a copy of ADRB, Arlington, VA, memorandum, dated 10 August 2006, with Case Report and Directive; DD Form 214 (Certificate of Release or Discharge from Active Duty); Headquarters and Headquarters Company, 101st Aviation Brigade,
101st Airborne Division (Air Assault), Fort Campbell, KY, memorandum, dated
8 November 1999, subject:  Report of Promotion Board Proceedings with one DA Form 3357 (Board Recommendation) and four DA Forms 3356 (Board Member Appraisal Worksheets); DA Form 2443 (Certificate of Commendation); DA Form 5790-R (Record Firing Scorecard - Scaled Target Alternate Course), dated
25 June 1999; DA Form 705 (Army Physical Fitness Test Scorecard); two Certificates of Training; Headquarters, U.S. Army Soldier Support Institute, Training Support Battalion, Fort Jackson, SC, memorandum, dated 31 May 2000, subject:  USAREC Corporal Recruiter Program; FJ Form 350-100-90 (Army Recruiter Course - Student Evaluation), dated 26 June 2000; Headquarters, U.S. Army Recruiting Battalion St. Louis, St. Louis, MO, memorandum, dated
12 January 2001, subject:  Announcement of Recruiter Incentive Award; and two Certificates of Achievement.

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 had prior enlisted service in the Army National Guard (ARNG) from 22 February 1995 to 18 February 1999.

3.  The applicant enlisted and entered active duty in the Regular Army on
19 February 1999.  Upon completion of training, he was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).

4.  On 18 July 2002, the applicant was tried by a special court-martial.  He was found guilty of the charge and specification of being absent without leave (AWOL) from on or about 20 September 2001 to on or about 12 June 2002.  The approved sentence provided for reduction to the grade of private (E-1), confinement for 30 days, and to be discharged from the service with a bad conduct discharge.

5.  On 8 October 2002, the U.S. Army Court of Military Review held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, it affirmed the findings of guilty and the sentence as approved.
6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Court-Martial Order Number 48, dated 28 March 2003, shows that the applicant's sentence to a bad conduct discharge, confinement for 30 days, and reduction to private (E-1) adjudged on 18 July 2002 was affirmed pursuant to Article 66.  This document also shows the portion of the sentence pertaining to confinement had been served and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed.

7.  The DD Form 214 issued to the applicant on 29 July 2003 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3 (Character of Service/Description of Separation), with a bad conduct discharge.  Based on the authority and reason for his separation, the applicant was assigned an RE Code of 4.  At the time of discharge the applicant had completed 4 years, 4 months, and 19 days of net active service during the period of service under review and he had 288 days of time lost.

8.  On 3 October 2005, the applicant applied to the ADRB requesting upgrade of the character of his service and a change to his RE Code.  On 10 August 2006, the ADRB determined the applicant's character of service was inequitable.  Accordingly, the ADRB voted to upgrade the applicant's character of service to under other than honorable conditions.  The ADRB also informed the applicant that a change in the reason for his discharge is not authorized under Federal statute.  The applicant's request for a change to his RE Code was not addressed by the ADRB.

	a.  The ADRB declared the applicant's 29 July 2003 DD Form 214 void.

	b.  The ADRB issued a new DD Form 214 to the applicant for the period
19 February 1999 through 29 July 2003 that shows he was separated under the provisions of Army Regulation 635-200, Chapter 3, with an under other than honorable conditions discharge.  He was assigned an RE Code of 4.

9.  In support of his application, the applicant provides the following documents.

     a.  A Report of Promotion Board Proceedings with Board Recommendations  show the applicant was recommended for integration into the list for promotion to the rank of sergeant (E-5) on 8 November 1999.

   b.  A Certificate of Commendation issued to the applicant for displaying professionalism, initiative, and commitment while assigned to the
1244th Transportation Company.

   c.  A Record Firing Scorecard - Scaled Target Alternate Course, dated
25 June 1999, that shows the applicant qualified as a marksman.

	d.  An Army Physical Fitness Test (APFT) Scorecard that shows the applicant passed four APFTs during the period 26 March 1999 to 11 May 2000.

	e.  Two Certificates of Training.  One shows the applicant completed training in combat assault, sling load, and rappelling operations and that he earned the Air Assault Badge on 15 April 1999.  The other shows he completed the Combat Lifesaver Course on 25 February 2000.

   f.  An Army Recruiter Course - Student Evaluation, dated 26 June 2000, that shows the applicant was rated average in four areas and superior in seven areas during the Army Recruiter Course.
   
   g.  A memorandum and Certificate of Achievement, both dated 12 January 2001, that show the applicant was awarded the Basic Recruiter Badge with One Gold Achievement Star.

   h.  A Certificate of Achievement that shows the applicant was recognized for being the top U.S. Army Reserve producer for the Cape Girardeau Recruiting Company for the month of February 2001.

10.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in pertinent part, 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.  RE Code 4 applies to persons who have a non-waivable disqualification and may not request reentry.  The Army regulation also provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code should be changed so he may reenter military service and serve his country.  He also contends that he requested a change to his RE Code when he submitted his application to the ADRB; however, the ADRB did not change his RE Code.

2.  The applicant's discharge under the provisions of Army Regulation 635-200, Chapter 3, was administratively correct and in compliance with applicable regulations.  Based on a review of the applicant's discharge by the ADRB, he was informed that a change in the reason for his discharge is not authorized under Federal statute.  However, the ADRB determined the applicant's character of service was too harsh and his character of service was upgraded to under other than honorable conditions. 

3.  The applicant's request for change of the RE Code that he was assigned in conjunction with his discharge from the U.S. Army and the applicant's record of service during the period of enlistment under review were carefully considered.  
The applicant's accomplishments and achievements prior to his period of AWOL and court-martial are noteworthy.  However, they do not serve to mitigate the authority and reason for his discharge.

4.  The applicant’s assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.  Thus, the assigned RE Code was appropriate at the time of discharge and it 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.

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)                                         AR20090006211



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ABCMR Record of Proceedings (cont)                                         AR20090006211



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