IN THE CASE OF:	 

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020072 


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 a change to his reentry eligibility (RE) code.

2.  The applicant states he wants to get back into the military so he needs to have his RE code changed.  He also states he would like to upgrade his discharge.

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.  Although his primary request to this Board is a change to his RE code which will be considered, the applicant also mentioned an upgrade of his discharge in his application.  He is advised that the regulation governing the operation of this Board requires that a member exhaust all available administrative remedies prior to consideration of an issue by this Board.  In this case, in order for the applicant to exhaust his administrative remedies related to an upgrade of his discharge, he would have to apply to the Army Discharge Review Board (ADRB) and request an upgrade of and/or change to the reason for his discharge.  Once he has exhausted this administrative remedy, if he still feels an error or injustice exists, he may reapply to this Board.  Given all administrative remedies have not yet been exhausted on his discharge upgrade request, this issue will not be discussed further in this Record of Proceedings.

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 24 September 2003.  He was trained in and awarded military occupational specialty 88M (Motor Transport Operator).

4.  The applicant's record shows he earned the following awards during his active duty tenure:

* Army Commendation Medal
* National Defense Service Medal
* Army Service Ribbon
* Global War on Terrorism Service Medal.

5.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 October 2005 for failing to go to his prescribed place of duty at the time prescribed.  His punishment was a reduction to private/E-1, forfeiture of $773.00 per month for 2 months, and 45 days of extra duty and restriction, all suspended until 9 January 2006.

6.  In November 2005, the suspension of the punishments imposed by the Article 15 of 11 October 2005 were vacated based on the applicant's violation of Article 86 of the UCMJ by failing to report at the appointed place and time on 20 October 2005.

7.  The record also shows the applicant was formally counseled by members of his chain of command on at least 15 separate occasions between 29 September 2004 and 29 November 2005 for a myriad of infractions that included:

* pattern of misconduct
* domestic disturbance (multiple)
* failure to report (multiple)
* missing formation (multiple)
* failure to obey orders

8.  On 14 November 2005, the unit commander notified the applicant of his intent to initiate action to separate him for a pattern of misconduct.  The unit commander stated his reason for taking the action was because the applicant's conduct did not represent that of a Soldier.  He further indicated the applicant failed to rehabilitate and showed no signs of improvement despite being given numerous opportunities.  The commander informed the applicant he was recommending the applicant receive a general under honorable conditions discharge, but that the intermediate commander and separation authority were not bound by his recommendation as to the characterization of the applicant's service.

9.  On 16 November 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he voluntarily waived his right to consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than general.

10.  On 22 December 2005, the separation authority approved the applicant's separation under the provisions of paragraph 14-12b, Army Regulation 635-200 (Personnel Separations), by reason of misconduct (pattern of misconduct) and directed the applicant be issued a general discharge.  On 5 January 2006, the applicant was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 5 January 2006 shows he held the rank of private first class and had completed 2 years, 3 months, and 12 days of active military service at the time of his discharge.  Item 26 (Separation Code) shows that based on the authority and reason for his discharge, he was assigned a separation program designator (SPD) code of JKA and item 27 (Reentry Code) shows he was assigned a corresponding RE code of 3.

12.  There is no evidence indicating the applicant applied to the ADRB requesting an upgrade of or change to the reason for his discharge.

13.  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 U.S. Army Reserve.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process waiver requests.

14.  Army Regulation 635-5-1 (SPD Codes) provides the current policy related to the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214.  It states SPD code JKA is the appropriate code to assign to Soldiers separated by reason of misconduct under the provisions of paragraph 14-12b (pattern of misconduct), Army Regulation 635-200.  The SPD/RE code Cross Reference Table stipulates that a code of RE-3 will be assigned to members separated under these provisions with an SPD code of JKA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change to his RE code so he can reenter the military has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The evidence of record confirms the applicant was separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of misconduct (pattern of misconduct) and was properly assigned the SPD code JKA and an RE-3 code based on this authority and reason for discharge.  As a result, absent any evidence of error or injustice related to the applicant's assigned SPD and or RE codes, the RE-3 code was and remains valid.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.

3.  Although the applicant was assigned an RE-3 code, this does not prohibit him from enlisting.  There are regulatory provisions that allow him to apply for a waiver to enlist/reenlist.  Therefore, if he would like to reenter military service, he should consult with recruiting officials who are responsible for submitting RE code waivers.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



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)                                         AR20090020072



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ABCMR Record of Proceedings (cont)                                         AR20090020072



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