IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090016719 


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 eligibility (RE) code be changed.

2.  The applicant states that his RE code should be changed to give him a second chance.  He contends that there was low morale in the platoon due to drill sergeant fraternization and sexual harassment.  He indicates that he and eight others did not want to be a part of that lifestyle so they left believing that was the only way to get away from the situation.  He knows it was a bad choice and he wants a second chance.

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 15 June 1999 for a period of 6 years.

3.  On 11 December 1999, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 28 October 1999 to 24 November 1999.  His punishment consisted of a forfeiture of pay, restriction, extra duty, and an admonition.  Records show he was placed in military confinement from 24 November 1999 to 2 December 1999.

4.  The applicant was AWOL again on 16 December 1999 and returned to military control on 8 January 2000.

5.  On 16 March 2001, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  On 16 March 2001, he consulted with counsel and waived his rights.  On 24 August 2001, the unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  On 1 October 2001, the separation authority approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 5 November 2001 under the provisions of Army Regulation 
635-200, chapter 14, paragraph 14-12c(1), for misconduct (commission of a serious offense).  He had served a total of 2 years, 2 months, and 22 days of creditable active service with 59 days of lost time due to AWOL and confinement.

7.  Item 25 (Separation Authority) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Army Regulation 
635-200, paragraph 14-12c(1)."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKD."  Item 27 (Reentry Code) of his DD Form 214 shows the entry "3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "misconduct."  His DD Form 214 also shows he was placed on excess leave from 19 January 2000 to 5 November 2001, a total of 657 days.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c(1) of this regulation stated that an absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code "JKD is "misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(1).

10.  Pertinent Army regulations provide 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 processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes.

11.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.

12.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

13.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that Soldiers given a separation program designator of JKD will be given an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for granting the applicant's request.

2.  The applicant's current RE code is a waivable code.  Therefore, the applicant may still apply for service in the U.S. Army and request the appropriate waiver.

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)                                         AR20090016719



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ABCMR Record of Proceedings (cont)                                         AR20090016719



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