BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090013030 


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 correction of her reentry eligibility (RE) code from 
RE-3 to a more favorable code so she may reenter military service.

2.  The applicant states that she asked for a voluntary discharge due to a family hardship; however, at the hearing, she was informed that she would be discharged for fraudulent enlistment.  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 February 2005; a copy of page 62 of Army Regulation 635-200 (Personnel Separations - Active Duty Administrative Enlisted Separations), dated 6 June 2005; a copy of page 12 of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), dated 7 June 2007; a copy of her son's birth certificate, dated 20 March 2002; a copy of a State of Georgia Temporary Letters of Guardianship of the Person of Minor, dated
23 May 2003; a copy of a State of Georgia Acknowledgement of Service and Assent to Dissolution of Guardianship Instanter, dated 5 May 2004; and a copy of a Certificate of Death/State of Georgia, pertaining to F________ B____, registered on 12 December 2003, in support of her request. 

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 records show she enlisted in the Regular Army (RA) for a period of 4 years on 29 July 2003.  She completed basic combat and advanced individual training and she was awarded military occupational specialty (MOS) 25D (Telecommunications Operator/Maintainer).  The highest rank/grade she attained during her military service was private first class (PFC)/E-3.  She was assigned to the 15th Transportation Detachment in Germany.

3.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, her record contains a properly constituted 
DD Form 214 that shows she was discharged on 16 February 2005 under the provisions of chapter 7 of Army Regulation 635-200 by reason of fraudulent entry with a character of service of general, under honorable conditions.  This form further shows she completed 1 year, 6 months, and 18 days of net active service this period.  Item 26 (Separation Code) of this form shows the entry "JDA" and item 27 (Reentry Code) shows the entry "3."

4.  The applicant's records do not indicate that she requested a discharge due to a family hardship or that such discharge was processed and/or approved.  

5.  The applicant submitted the following documents:

	a.  A copy of page 62 of Army Regulation 635-200 in which she highlighted the entry "when a commander authorized to order minority discharge or release from custody of the Army because of minority receives an application from either the parents or guardian, with the supporting evidence required in paragraph 7-5, the commander will take action as specified in the notification procedure, chapter 2, section II."

	b.  A copy of page 12 of Army Regulation 601-210 in which she highlighted the entry "…They will (unless they can show cause, such as death or incapacity of the person who has custody) be processed for separation (involuntary) for fraudulent enlistment.  Retention of Soldiers who have enlisted fraudulently is governed by Army Regulation 635-200."

	c.  A copy of her son's birth certificate, showing he was born on 20 March 2002.
	
	d.  A copy of a State of Georgia Temporary Letters of Guardianship of the Person of Minor, in which a State judge awarded temporary guardianship of her son to two individuals. 

	e.  A copy of a death certificate, dated 24 November 2003, pertaining to one of the two individuals named in the letters of guardianship. 

	f.  A copy of a State Order dissolving the temporary guardianship.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 7-17 provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry-level status the characterization of service will be uncharacterized.  

7.  Army Regulation 635-200 states, in pertinent part, 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 and processing into the RA and the US Army Reserve (USAR).  Table 3-1 included a list of the RA Reenlistment Eligibility Codes (RE codes).  An RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3, applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

8.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "JDA" is the correct code for Soldiers separating under chapter 7 of Army Regulation 635-200 by reason of fraudulent entry.  

9.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD codes and corresponding RE codes.  The SPD code of "JDA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her RE code should be changed from RE-3 to a more favorable RE code so she may reenter military service and the supporting evidence she submitted were carefully noted and considered.  However, there is insufficient evidence to grant her the requested relief in this case. 

2.  The applicant’s record is void of her request for a family hardship discharge and/or the action by the separation authority.  It is also void of the facts and circumstances that led to her discharge.  However, her record contains a properly-constituted DD Form 214 that shows she was discharged on
16 February 2005 under the provisions of chapter 7 of Army Regulation 635-200 by reason of fraudulent entry. 

3.  The applicant’s RE code was assigned based on the fact that she was discharged under the provisions of chapter 7 of Army Regulation 635-200 due to fraudulent entry.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Absent the fraudulent entry, there was no fundamental reason to process the applicant for discharge.  The underlying reason for her discharge was presumably her fraudulent entry.  The only valid narrative reason for separation permitted under that paragraph is "Fraudulent Entry" and the appropriate RE code associated with this discharge is RE-3.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if she desires to reenter military service, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, she is not entitled to the requested relief.
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)                                         AR20090013030



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ABCMR Record of Proceedings (cont)                                         AR20090013030



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