IN THE CASE OF:	  

		BOARD DATE:	       6 OCTOBER 2009

		DOCKET NUMBER:  AR20090007906 


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 7 June 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 that when he speaks to Army recruiters they do not want to process prior service personnel because a waiver is required.

   b.  He adds that all he wants to do is enlist in the Regular Army (RA) and become the next outstanding noncommissioned officer or commissioned officer.

3.  The applicant provides no additional documentary evidence 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 enlisted and entered active duty in the RA on 17 November 1999.

3.  A copy of the applicant's administrative separation packet is not filed in his military personnel records.

4.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 18 December 2004 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12b (pattern of misconduct), under honorable conditions.  Based on the authority and reason for his separation, the applicant was issued the Separation Code "JKA" and assigned an RE Code of 3.  At the time of his discharge the applicant had completed
5 years, 1 month, and 2 days of net active service.

5.  On 18 November 2005, the applicant applied to the ADRB requesting upgrade of the character of his service and a chance to reenter the military.  On 7 June 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 fully honorable.  The ADRB also determined that the reason for his discharge was both proper and equitable and voted not to change it.

	a.  The ADRB declared the applicant's 18 December 2004 DD Form 214 void.

	b.  The ADRB issued a new DD Form 214 to the applicant for the period
17 November 1999 through 18 December 2004 that shows he was honorably discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b.  Item 27 (Reentry Code) shows the entry 3.

6.  On 14 May 2007, a request for waiver based on a separation disqualification (pattern of misconduct) was submitted on behalf of the applicant.  On 25 July 2007, the applicant enlisted in the Army National Guard of the United States (ARNGUS) and South Carolina Army National Guard (SCARNG) for a period of
2 years, 9 months, and 8 days.

7.  Army Regulation 635-5-1 (Separation Program Designator (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.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, based on a pattern of misconduct.

8.  The SPD Code/RE Code Cross Reference Table shows that a Soldier issued SPD Code "JKA" will be assigned an RE Code of 3.

9.  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 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.

10.  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.

11.  The governing Army regulation further provides that prior service 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."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code of 3 should be changed so he may reenter the military.  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 14, based on a pattern of misconduct 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 the reason for his discharge was both proper and equitable.  However, the ADRB determined the applicant's character of service was inequitable and his character of service was upgraded to fully honorable.

3.  The applicant was granted a waiver of a separation disqualification and he enlisted in the ARNGUS and SCARNG on 25 July 2007.

4.  There is no evidence in the applicant's military personnel 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.

5.  The RE Code of 3 that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the RE Code 3 assigned at the time of the applicant's discharge was, and remains, valid.  Therefore, there is no basis to change the applicant's RE Code.

6.  Individuals, including prior service 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.  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 prior service member as to the needs of the Service and are required to process waivers of RE codes.  He should provide a copy of this Record of Proceedings to remind recruiters that they are required to process a request for a waiver.
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.




      _______ _   __XXX_____   ___
               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)                                         AR20090007906



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ABCMR Record of Proceedings (cont)                                         AR20090007906



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