IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008804 


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 of 4 be changed to an RE Code of 1, 2, or 3.

2.  The applicant states that when he was administratively discharged from the Arizona Army National Guard (AZARNG) it was explained to him that the Military Personnel Security Program was the only separation program he could receive separation pay under.  He states that he believes the RE Code of 4 that he received is extreme because his discharge was based mostly on allegations and no other Soldier involved in the situation was penalized in any way.  He adds he has a copy of his answers to the allegations, but there was no other paperwork involved in the discharge.  He concludes by stating that the Board should change his RE Code to a 1, 2 or 3 because he has 17 years of active duty service and his experience would benefit the military, if he were allowed to serve again.

3.  The applicant provides, in support of his application, copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a two-page unsigned statement, and a DA Form 2823 (Sworn Statement).

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.  A DD Form 214 shows the applicant had prior honorable enlisted service in the Regular Army from 16 June 1986 through 13 March 1998 and that he completed 11 years, 8 months, and 28 days of net active service.

3.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and AZARNG on 30 April 1998 in military occupational specialty 75H (Personnel Services Sergeant).  He entered active duty under the Active Guard Reserve program on 1 November 1998.

4.  State of Arizona, Orders 106-01, dated 9 September 2003, show the applicant was reduced from sergeant first class (SFC)/pay grade E-7 to staff sergeant/pay grade E-6 for misconduct, effective 7 September 2003.

5.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

6.  The DD Form 214 issued to the applicant on 15 September 2003 confirms he was discharged under the provisions of Army Regulation 604-10 (Military Personnel Security Program) and State of Arizona, Orders 106-02, dated
9 September 2003.  Based on the authority and reason for separation, the applicant was issued the Separation Code of "JDK" and assigned an RE Code 
of 4.  At the time of discharge the applicant had completed 4 years, 10 months, and 15 days of net active service during the period of service under review.

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

     a.  A two-page unsigned statement [apparently] written by the applicant in which he describes his personal relationships with two different females; alleges several personal relationships involving a number of military personnel in his unit, including an officer who was involved with an enlisted Soldier; and allegations that include a noncommissioned officer (NCO) forging recruiting documents, an NCO being confined by civil authorities and carried by the unit in a leave status, and an NCO falsifying Army Physical Fitness Test scores.  The statement concludes with, "I do not want to remain in the Arizona Army National Guard.  I wish either to go Active Duty, or be discharged with severance pay, an honorable discharge and any type of RE code the Guard wishes.  I will not accept a reduction in rank, since that has not happened to anyone else."
   
   b.  A Sworn Statement, dated 27 August 2003, made by SFC Darin D. M____ who states the applicant talked to him at a Recruiting and Retention Conference in September 2002 about a personal relationship he had begun with a prospective recruit.  SFC M_____ states, based on his experience in recruiting, he advised the applicant to avoid recruiting impropriety he should pass the potential recruit to another recruiter.  He also states the applicant later informed him he had spoken to a senior NCO in the unit and that one of the recruiting team NCOs would enlist the woman.

8.  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 "JDK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 604-10 (Military Personnel Security Program).

9. The SPD Code/RE Code Cross Reference Table shows that a Soldier issued an SPD Code of "JDK" will be assigned an RE Code of 4.

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.  An RE Code 4 applies to persons who have a non-waivable disqualification and may not request reentry.  This 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 his RE Code of 4 should be changed to an RE Code of 1, 2 or 3 because his discharge was based mostly on allegations.  He also contends that his RE Code is extreme, and he would like to reenter the military.

2.  The statements the applicant provides in support of his request were carefully considered; however, they provide insufficient evidence to show that he was improperly discharged "based mostly on allegations."

3.  In the absence of evidence to the contrary, it is concluded that the applicant's discharge under the provisions of the Military Personnel Security Program was administratively correct and in compliance with applicable regulations.
4.  The applicant's assigned RE Code of 4 is 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)                                         AR20090008804



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ABCMR Record of Proceedings (cont)                                         AR20090008804



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