IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011041 


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, that his reentry eligibility (RE) code of RE-3 be changed so that he may be eligible to reenter the military.

2.  The applicant states, in effect, that at the time of his discharge his father had just passed away and he started to drink heavily.

3.  The applicant provides no additional documents 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 on 
23 September 1988.

3.  The applicant's record contain Orders Number 012-157, 257th Personal Service Company, Spangdahlem Composite Team, APO New York, dated 
22 January 1988, which shows that the applicant was granted emergency leave due to the terminal illness of his father. 

4.  The applicant's records also show that he received 13 General Counseling's during the period 27 May 1987 through 30 July 1988, for various offenses to include drinking while enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), lack of self discipline, failure to perform his assigned duties, failure to shine his boots, and failure to be at his appointed place of duty.

5.  The applicant's record contains a DD Form 1569 (Incident/Complaint Report ) dated 29 July 1988, which states he was detained by the security police for kicking a car and being highly intoxicated.

6.  On 11 August 1988, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk and disorderly.  His punishment consisted of a reduction to private (PV2)/E-2, a forfeiture of $175.00 (both suspended), 14 days of extra duty, and 14 days of restriction. 

7.  On 25 August 1988, NJP was imposed against him for breaking restriction.  His punishment consisted of reduction to private (PVT)/E-1, a forfeiture of $156.00 pay, 14 days of extra duty and 14 days of restriction. 

8.  On 28 August 1988, a Mental Status Evaluation cleared the applicant for any action deemed appropriate.

9.  On 6 September 1988, the applicant’s unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter
14-12b, Army Regulation 635-200, patterns of misconduct.  The unit commander based this action on the applicant’s disciplinary history to include two NJPs and numerous counseling statements.

10.  On the same date the applicant consulted with legal counsel and was advised of the basis for the contemplated action and the rights available to him.  The applicant waived his right and he did not submit statement on his own behalf.  He acknowledged that he understood he would have less than 
6 years of total active and/or Reserve military service at the time of separation; therefore, he was not entitled to have his case heard by a board of officers.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  

11.  On 8 September 1988, the appropriate separation authority approved the discharge and directed the issuance of a General Discharge Certificate.  

12.  The applicant was discharged on 23 September 1988, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct –pattern of misconduct, with a general discharge.  He was credited with completing 2 years, 1 month, and 10 days of total active service.  Item 26 (Separation Code), of his DD Form 214 contains the entry "JKM" and Item 27 
(RE Code) contains the entry "RE-3, 3C."

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14, paragraph 14-12b, established policy and prescribed procedures for separating personnel for misconduct because of a pattern of misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE codes, based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a 
list of Armed Forces reentry codes, including RA RE codes.  Chapter 3-10, also provided that RE codes may be changed only if they were determined to be administratively incorrect.  

15.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3C applies to persons who did not meet the reentry grade and service criteria at the time of separation.  The person is ineligible for enlistment unless a waiver is granted.

16.  Army Regulation 635-5-1, in effect at the time, prescribed the specific authorities regulatory, statutory, or directives for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation showed the SPD code of "JKM," as shown on the applicant’s DD Form 214, was appropriate when a Soldier was separated for a pattern of misconduct and that the authority for discharge under this SPD code was Army Regulation
635-200, paragraph 14-12b.

17.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKM" had a corresponding 
RE code of "3."  He was also assigned an RE code of 3C because he did not meet the reentry grade and service criteria at the time of separation

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was enrolled in the ADAPCP and he continued to drink while enrolled in the program.  While the applicant's record shows that his father was terminally ill it does not show that his father's illness was the reason for his drinking nor does it show that the applicant sought help from his chain of command.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the assignment of his RE codes.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process. There is no evidence of error or injustice.  

3.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reenlistment.  The RE codes of 3, and 3C apply to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualifications are waivable.  Therefore, if he desires to reenlist, he should contact a local recruiter to determine his eligibility.  

4.  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)                                         AR20090011041



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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