IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090016751 


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 separation code and Reentry (RE) Code be changed to more favorable codes that will allow him to reenter the service and obtain benefits. 

2.  The applicant states that his separation document indicates he did not complete his first full term of service.  However, he initially enlisted for a period of 3 years and subsequently reenlisted for a period of 4 years.  He goes on to state that he feels betrayed by the Army because he was cleared of all charges and neither his rank nor funds were restored to him so he requested to be discharged.  He continues by stating that his battalion commander gave him a general discharge because he did not complete his reenlistment.

3.  The applicant provides no additional documents with 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 17 June 1998 for a period of 3 years and training as a cavalry scout.  He completed one-station unit training at Fort Knox, Kentucky and was transferred to Korea on 24 October 1998 for assignment to an infantry company.  He was advanced to the pay grade of E-3 on 23 May 1999.

3.  He departed Korea on 19 October 1999 and was transferred to Fort Knox for assignment to a cavalry troop.

4.  On 20 June 2000, he reenlisted for a period of 4 years and a selective reenlistment bonus.  He was advanced to the pay grade of E-4 on 17 August 2000.

5.  On 13 February 2001, nonjudicial punishment (NJP) was imposed against the applicant for fleeing apprehension by the military police, making a false official statement, and wrongfully consuming alcohol while under the age of 21.

6.  On 3 March 2001, NJP was imposed against him for the wrongful use of marijuana.

7.  On 11 May 2001, he was convicted by a special court-martial of being absent without leave terminated by apprehension.  He was sentenced to confinement for 60 days and a forfeiture of pay.

8.  On 13 June 2001, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation (AR) 635-200, paragraph 14-12b due to a pattern of misconduct.  He cited the applicant’s disciplinary record and his failure to respond to repeated counseling for failure to go to his place of duty as the basis for his recommendation. 

9.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his behalf.

10.  The appropriate authority approved the recommendation for discharge on 3 July 2001 and directed that he be furnished a General Discharge Certificate.

11.  Accordingly, he was discharged under honorable conditions on 11 July 2001, under the provisions of AR 635-200, paragraph 14-12b, due to a pattern of misconduct.  He was issued a separation code of “JKA” to denote the separation authority (AR 635-200, paragraph 14-12b) and an RE Code of “3.”  He had served 2 years, 10 months, and 28 days of total active service and had 56 days of lost time.  The entry “Member has not completed first full term of service” was entered in the remarks section (block 18) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

12.  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 USAR.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

13.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

14.  Army Regulation 635-5 serves as the authority for the preparation of the 
DD Form 214.  It provides, in pertinent part, that routinely, a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.
 
2.  The applicant was separated under the provisions of Army Regulation        635-200, chapter 14; therefore, he was properly issued a separation code of “JKA” and an RE code of RE-3 in accordance with the applicable regulations.

3.  However, the applicant’s initial term of enlistment was redefined when he reenlisted and therefore his DD Form 214 should reflect that he completed his first full term of service.


4.  The applicant has failed to show through the evidence submitted or the evidence of record that he was issued the wrong separation and or RE codes at the time of his discharge.  Even though his request to change his Separation and RE codes is being denied, this does not preclude him from working with local recruiting personnel on ascertaining his eligibility for continued military service.  Recruiting personnel have the responsibility for determining whether an individual meets the current enlistment criteria and to process a request for a waiver if appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 18 of his DD Form 214 to show that he completed his first full term of service. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his Separation and RE codes.  



      _______ _   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)                                         AR20090016751





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016751



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1