IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090016085 


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, an upgrade of his "Uncharacterized" discharge and a change of his Separation Program Designator (SPD) and reentry (RE) codes on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he was informed the uncharacterized description of his service, the SPD code of LGA, and the RE code of 3 cannot be waived to allow him to reenter the military.  He states his current degree will make him a valued Soldier in the information technology area.  

3.  The applicant provides his DD Form 214 in support of this 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 and entered active duty on 
30 August 1989, and successfully completed basic training.  However, while in advanced individual training (AIT) at Fort Gordon, Georgia, the applicant was counseled for failing to pass the Army Physical Fitness Test (APFT) on 
26 January; 2 February; and 9 February 1990.  

3.  On 16 February 1990, the applicant was notified of a pending action to separate him from active duty and transfer him to the Individual Ready Reserve under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), the Trainee Discharge Program.  The unit commander cited as the basis for the proposed separation action the applicant's APFT failures.  The applicant was also informed that he would receive an entry level separation with an uncharacterized description of service.

4.  The applicant acknowledged notification of the proposed separation action and indicated he did not desire to consult with counsel, he did not desire to make a statement in his own behalf, and he did not desire to have a separation medical examination.

5.  On 23 February 1990, the separation authority approved the recommendation for separation with a characterization of service of "Uncharacterized" and an entry level status separation.  Accordingly, on 28 February 1990, the applicant was released from active duty and transferred to the United States Army Reserve Control Group, St. Louis, MO.  He had completed 6 months and 1 day of active service.

6.  The applicant's DD Form 214 shows he was assigned an SPD code of "LGA" and an RE code of 3.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation 
policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

8.  The same regulation further stipulates, in pertinent part, that separation under chapter 11 applied to Soldiers who were in an entry level status.  Soldiers are considered in an entry level status if they completed no more than 180 days of continuous active duty service when separation action is initiated.  

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

   a.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	b.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army, so long as all other qualifications are met.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD code of LGA as shown on the applicant's DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is entry level performance and conduct and the authority for discharge is Army Regulation 635-200, chapter 11.

11.  The SPD Code/RE Code Cross Reference Table states that when the SPD code is LGA then an RE code of 3 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of his service, SPD code, and RE code on his DD Form 214 should be changed so he may reenter the military.





2.  The applicant was separated under the provisions of chapter 11, Army Regulation 635-200, by reason of entry level performance and conduct.  Based on the authority and reason for separation, his service was properly described as "Uncharacterized" and he was properly assigned an SPD code of LGA and an RE code of 3 in accordance with the applicable regulations.  

3.  The applicant has failed to provide evidence that an error exists on his 
DD Form 214.  Therefore, there is no basis to grant the relief requested.  

4.  The applicant is advised that if he wishes to reenter the military, an RE code of 3 is waivable.  Therefore, he should seek the guidance of a recruiter, who can best advise him on the needs of the Army and process a waiver if he meets all other criteria.  

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)                                         AR20090016085



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ABCMR Record of Proceedings (cont)                                         AR20090016085



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