BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013743 


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, change of her reentry eligibility (RE) code from RE-3 to a more favorable code and change of the characterization of her discharge from uncharacterized to a general, under honorable conditions discharge.

2.  The applicant states, in effect, she was forced to cut her military career short because her father, who was the guardian of her son, got sick and he could no longer provide the care.  She now would like enlist in the Navy; however, her
RE-3 code is preventing her reentering military service.

3.  The applicant provides no documentation in support of her 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 she enlisted in the Regular Army (RA) and she entered active duty on 12 September 2000.

3.  On 25 October 2000, the unit commander notified the applicant that he was initiating action to discharge her under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 11, by reason of entry level performance and conduct due to occupational problems.

4. On 25 October 2000, the applicant acknowledged receipt of the separation notification and she completed an election of rights.  She acknowledged that before she completed the form, she was afforded the opportunity to consult with counsel and she declined this opportunity.  She further elected not to submit a statement in her own behalf.

5.  On 27 October 2000, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, chapter 11 and waived further rehabilitative measures.  On 2 November 2000, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued at the time shows she was separated under the provisions of Army Regulation 635-200, chapter 11 by reason of Entry Level Separation [ELS] Performance and Conduct.  It also shows that based on the authority and reason for her discharge, she was assigned a Separation Program Designator (SPD) code of JGA and an RE code of RE-3.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 11 provided guidance for the separation of Soldiers due to unsatisfactory performance/and or conduct while in ELS and, before the date of initiation of separation action, and who completed no more than 180 days of creditable continuous active duty service.

7.  Army Regulation 635-200, paragraph 10-8, provides the types of discharge/ characterization of service a member who is separated under chapter 11 may receive.  It states, in pertinent part, that for Soldiers who have completed ELS, an honorable discharge is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization would be improper.  It further states, in pertinent part, that when characterization of service "Under Other Than Honorable Conditions" is not warranted for a Soldier in an ELS, the Soldier's service will be "Uncharacterized."  A characterization of service of general, under honorable conditions is not authorized for an ELS Soldier.

8.  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 of JGA is the appropriate code to assign to Soldiers who separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that the RE code assignment will be RE-3 for members separated under these regulatory provisions.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve (USAR).  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-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her RE-3 code be changed to one more favorable and that her characterization of service be changed to "general, under honorable conditions" was carefully considered.  

2.  By regulation, a member separated while still in ELS will receive an "uncharacterized" description of service; a general, under honorable conditions character of service is not authorized.  As a result, there is an insufficient evidentiary basis to support a change to the applicant's characterization of service.  Furthermore, the governing regulation provides for assignment of an RE-3 code to Soldiers assigned a JGA SPD code based on being separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  As a result, the RE-3 code assigned the applicant was and remains valid.  

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)                                         AR20090013743



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ABCMR Record of Proceedings (cont)                                         AR20090013743



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