IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090009298 


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, in effect, an upgrade and change to his separation program designator (SPD) code and reentry eligibility (RE) code.

2.  The applicant states, in effect, that he was not charged with a crime and would like his codes upgraded and changed so that he can qualify for benefits.

3.  The applicant provides no 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's record shows he enlisted in the Regular Army and entered active duty on 21 August 1979.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that the applicant attained the rank of sergeant (SGT) on 1 January 1980 and that this is the highest rank he attained while serving on active duty.  Item 9 (Awards, Decorations, and Campaigns) shows that during his active duty tenure he earned the Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon with Numeral 2, Army Good Conduct Medal (3rd Award), Overseas Service Ribbon, Air Assault Badge, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Hand Grenade Bar.  Item 21 (Time Lost (Section 972, Title 10, U.S. Code)) shows he was absent without leave (AWOL) from 10 November 1983 through 12 November 1983.

4.  The applicant's record also shows that on 17 February 1984 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed and for sleeping on charge of quarters duty.  His punishment for these offenses was a reduction to specialist four and forfeiture of $300.00, both suspended, and 45 days of restriction and extra duty.

5.  On 21 June 1985, the applicant was honorably discharged in the rank of SGT after completing a total of 9 years and 1 day of creditable active military service and accruing 3 days of time lost due to being absent without leave.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows in item 25 (Separation Authority) that he was separated under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations).  Item 26 (Separation Code) shows he was assigned an SPD code of JBK, item 27 shows he was assigned an RE code of 3B, and item 28 (Narrative Reason for Separation) shows the reason for his separation was expiration of term of service (ETS).

6.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers 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 prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.

7.  Army Regulation 635-5-1 (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 states, in pertinent part, that the SPD code JBK is the appropriate code to assign to RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment and are separated under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS.  The SPD/RE Code Cross Reference Table in effect at the time provided for assigning an RE-3B code to individuals who had time lost through AWOL or confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD and RE codes should be upgraded and/or changed to allow him to apply for benefits was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record confirms the applicant was separated by reason of ETS after completing a total of 9 years and 1 day of creditable active military service and accruing 3 days of time lost due to AWOL.  He was appropriately assigned the SPD code of JBK based on the authority and reason for his discharge and the RE code of 3B based on his accrual of time lost due to AWOL. 
As a result, the SPD and RE codes assigned were and remain valid and there is an insufficient evidentiary basis to support changing them at this time.

3.  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.

4.  The applicant is advised that although no change to his SPD and RE code is being recommended, his eligibility for veterans' benefits is not necessarily impacted by these administrative codes and are more likely tied to the characterization of his discharge which was and remains fully honorable.  As a result, he should clarify and pursue his eligibility for benefits through the VA which is the agency responsible for administering veterans' benefits.

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)                                         AR20090009298



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ABCMR Record of Proceedings (cont)                                         AR20090009298



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