BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20090014941 


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 his reentry (RE) code on his DD Form 
214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 February 2002 be changed.  

2.  The applicant states, in effect, the reason he was discharged was because he refused to jump from aircraft and that he was trying to get out of his unit.  The applicant further states that he needs his RE code changed so that he may enlist in the National Guard or the Reserve.

3.  The applicant provides his DD Form 214. 

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 30 August 2000 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 92Y (Unit Supply Specialist).

3.  Following successful completion of the Basic Airborne Course, the applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 
505th Parachute Infantry Regiment, Fort Bragg, North Carolina, on 14 June 2001.

4.  On 23 August 2001, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty.

5.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  

* 10 June 2001 for failure to pass the Army Physical Fitness Test (APFT)
* 29 June 2001 for failure to be at his appointed place of duty
* 6 July 2001 for failure to pass a diagnostic APFT
* 9 July 2001 for failure to be at his appointed place of duty
* 14 August 2001 for failure to report to duty, for being away from duty without pass, and for traveling outside authorized radius without sufficient funds
* 28 August 2001 for failure to follow instructions
* 29 August 2001 for failure to follow instructions
* 30 August 2001 for failure to follow instructions
* 1 December 2001 for lack of motivation

6.  On 4 December 2001, the applicant accepted NJP under Article 15, UCMJ for being derelict in performance of duties [willfully failed to jump from an aircraft].

7.  On 5 December 2001, the applicant was suspended from airborne status.

8.  The applicant's record reveals additional disciplinary history that includes his acceptance of a general counseling statement on 8 December 2001 for lack of motivation during a company road march.

9.  On 12 January 2002, the applicant’s commander initiated elimination action on the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for commission of a serious offense.  The reason cited by the commander was the applicant's wrongful failure to jump from an aircraft on two occasions.

10.  On 16 January 2002, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c.  The applicant requested counsel and elected to submit a statement on his own behalf.  The applicant's statement is not in his records.

11.  On 25 January 2002, the appropriate authority approved the elimination packet and directed the applicant receive an honorable discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 
11 February 2002, the applicant was discharged after completing 1 year, 
5 months, and 12 days of creditable active service with no lost time

12.  The applicant's DD Form 214 shows he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, for "MISCONDUCT" and item 
27 (Reentry Code) shows the entry "3."

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that Soldiers are subject to separation for commission of a serious offense.  
  
14.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 3-21 of the regulation states that RE 3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers discharged (involuntarily) under chapter 14 of Army Regulation 635-200 by reason of misconduct.  


16.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table, in effect at the time of the applicant's discharge, shows the SPD code of "JKQ" has a corresponding RE code of "3."

17.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE 3 code assignment.  Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned RE 3 code was appropriate.  

2.  However, this does not mean that the applicant has been completely denied the opportunity to enlist.  Since he is eligible to apply for a waiver, he has the option of visiting his local recruiting station and consulting with recruiting personnel who are required to process a waiver request.

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)                                         AR20090014941





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ABCMR Record of Proceedings (cont)                                         AR20090014941



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