IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090009891 


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 item 27 (Reentry Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, that he was released from active duty due to an illegal board and that his discharge was upgraded by the Army Discharge Review Board (ADRB); however, his reentry eligibility (RE) code remained "3."  He states that RE code 3 will not allow him to enlist.  He indicates that he is attempting to correct a possible mistake on his DD Form 214 and that he is unaware of the classifications of RE codes.  He points out that due to the circumstances of his discharge he does not understand why he would not be allowed to return to service.

3.  The applicant also states that he is presently seeking an enlistment; that his time in service was one of the incomplete tasks in his life; that there were a few things he wanted to experience before he got out, such as airborne school and Ranger training; and that with his current RE code he has to get a waiver.

4.  The applicant provides a copy of his reissued DD Form 214 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 in the Regular Army on 6 May 1999.  He served as an administrative specialist in Kosovo from 1 August 2001 to 1 December 2001.

3.  On 8 February 2002, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.

4.  On 3 April 2002, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (pattern of misconduct).  On 18 April 2002, the separation authority approved the recommendation for separation and directed that the applicant be issued a general discharge.

5.  On 1 May 2002, the applicant was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct (pattern of misconduct).  He had completed 2 years, 11 months, and 6 days of creditable active service.

6.  Item 25 (Separation Authority) of the applicant's original DD Form 214 shows the entry "AR 635-200, PARA 14-12B."  Item 26 (Separation Code) of this DD Form 214 shows the entry "JKA."  Item 27 of this DD Form 214 shows the entry "3."  Item 28 (Narrative Reason for Separation) of this DD Form 214 shows the entry "MISCONDUCT."

7.  On 20 August 2004, the ADRB upgraded the applicant's general discharge to honorable.  The ADRB also directed that his narrative reason for separation be changed to Secretarial Authority under the provisions of Army Regulation 
635-200, chapter 5, and that his separation code be changed to "JFF."  The ADRB Office of the Secretary of the Army Form 172 (Case Report and Directive) states, in pertinent part, that "This action does not entail a change to the reentry eligibility (RE) code."

8.  The applicant was issued a new DD Form 214.  Item 25 of this DD Form 214 shows the entry "AR 635-200 PARA 5-3."  Item 26 of this DD Form 214 shows the entry "JFF."  Item 27 of this DD Form 214 shows the entry "3."  Item 28 of this DD Form 214 shows the entry "SECRETARIAL AUTHORITY."

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for separation based on separation code "JFF" is "Secretarial Authority" and the regulatory authority is Army Regulation 635-200, chapter 5-3.

11.  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 processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes.

12.  RE-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.

13.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

14.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that when the separation program designator is "JFF," the Headquarters, Department of the Army, directive authorizing the separation program or specific separation will provide the RE code.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the ADRB's decision to upgrade his discharge and change the reason for the applicant's separation, it appears he was issued the correct RE code and it was within the ADRB’s authority to direct that he retain RE code 3.  The applicant has provided no evidence which shows his RE code is incorrect.  Therefore, there is no basis for granting the applicant's request.

2.  The applicant's current RE code is a waivable disqualification.  Therefore, as recruitment requirements change, the applicant may still apply for service in the Armed Forces and request the appropriate 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.



      ____________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)                                         AR20090009891



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ABCMR Record of Proceedings (cont)                                         AR20090009891



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