IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090020977 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 December 2002 to show:

* completion of first full term of service
* rank/grade of specialist (SPC)/E-4 instead of private (PV1)/E-1
* reentry eligibility (RE) code of 1 instead RE code 3

2.  The applicant states he needs his DD Form 214 corrected to so that he can obtain his Montgomery GI Bill benefits in order to continue with his education so he can find a job.  He further states that there was no wrongdoing on his part to have been discharged from the service and that his RE Code should be upgraded in order for him to reenter the service, in addition to correcting his rank to show SPC.

3.  The applicant provides a copy of his upgraded DD Form 214 and a DD Form 
2366 (Montgomery GI Bill Act of 1984), dated 6 January 2000.

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 (RA) on 3 February 2000 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 92S (Laundry and Textile Specialist).  The highest rank/grade he obtained while in the Army was private first class (PFC)/E-3.

3.  The applicant's record reveals his acceptance of general counseling statements as following:

* on 28 November 2001 for being absent from battalion physical training and disobeying a lawful order
* on 29 November 2001 for disobeying a lawful order and dereliction of duty
* on 12 December 2001 for notification of flagging action for adverse action
* on 2 January 2002 for missing accountability formation

4.  On 2 January 2002, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a superior noncommissioned officer (NCO).  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2 and 14 days of extra duty and restriction.

5.  The applicant's record further reveals a disciplinary history on the following dates:

* 7 January 2002 for missing accountability formation
* 23 January 2002 for missing accountability formation
* 12 February 2002 for missing movement

6.  On 5 March 2002, the applicant accepted NJP under Article 15, UCMJ for missing his company movement and three specification of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to the rank/grade of private (PV1)/E-1, forfeiture of $552.00, and 45 days of extra duty.

7.  The applicant's record further reveals a disciplinary history on the following dates:

* 2 June 2002 for failure to repair
* 10 July 2002 for bar to reenlistment (overweight)
* 28 October 2002 for bar to reenlistment and initiation of chapter proceedings

8.  On 14 November 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 reasons cited by the commander were the applicant's contempt of an NCO, disrespectful language towards an NCO, assaulting an NCO, and willfully disobeying a lawful order.

9.  On 15 November 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.  He signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  With advice from counsel, the applicant requested a waiver of his right to an administrative board on the condition that he would receive no less than a general discharge.

10.  On 2 December 2002, the separation authority approved the recommendation for discharge and directed the applicant receive a General Discharge Certificate.  On 26 December 2002, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct.  Item 26 (Separation Code) shows the entry "JKA" and item 27 (RE Code) shows the entry "3."

11.  His DD Form 214 further shows in Item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) his rank/grade was PV1/E-1 at the time of his discharge.  Item 12a (Date Entered Active Duty (AD) This Period) shows he entered AD on
3 February 2000, item 12b (Separation Date This Period) shows he was separated on 26 December 2002, and item 12c (Net Active Service This Period) shows he completed 2 years, 10 months, and 24 days of active service at the time of separation.

12.  There is no evidence in the applicant's record that shows he was advanced to the rank/grade of SPC/E-4 during his period of service.

13.  On 27 October 2004, the Army Discharge Review Board (ADRB) determined that the authority for approval of the applicant's separation action rested with the General Court-Martial Convening Authority (GCMA) and that someone other than the GCMA approved the applicant's discharge.  Therefore, the ADRB found that the applicant's characterization of service was improper and voted to upgrade his discharge to honorable and to change his narrative reason for separation to Secretarial Authority.  However, the ADRB determined that this action did not entail a change to his RE code.

14.  The applicant was reissued a DD Form 214 that shows his authority for discharge was changed to Army Regulation 635-200, paragraph 5-3 (Secretarial plenary authority) and the narrative reason for his discharge was changed to "Secretarial Authority."  Item 24 (Character of Service) shows the entry "HONORABLE," Item 26 shows the entry "JKK," item 27 shows an RE code of 3, and item 18 (Remarks) shows that he has not completed his first full term of service.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14-12c(2), by reason of misconduct - drug abuse.  It also states that SPD code "JFF" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial Authority.  The SPD/RE Code Cross Reference Table shows a corresponding RE code of "TBD" [to be determined] for the SPD Code of JFF.  This table further states, when the table specified "TDB," the Headquarters Department of the Army (HQDA) directive authorizing the separation program or specific separation will provide the RE code.

16.  Army Regulation 635-200 states, in pertinent part, 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

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 Army Regulation 601-210, chapter 4.

18.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states for item 18, use this block for HQDA mandatory requirements when a separate block is not available.  It further states to enter the mandatory entry: “SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE.” This information assists the State in determining eligibility for unemployment compensation entitlement.  The following guidance will help determine which entry to use:

   a.  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.

   b.  To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment/reenlistment documents and compare the term(s) of enlistment to the net service in block 12c of the DD Form 214.  If Soldier has completed or exceeded the initial enlistment, enter “has.”  If item 12c of the DD Form 214 is less than the Soldier’s initial enlistment, enter “has not.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he completed his first full term of service.  Evidence of record shows he enlisted in the RA on 3 February 2000 for a period of 3 years.  On 26 December 2002, he was discharged after completing 2 years, 10 months, and 24 days of creditable active service.  Therefore, item 24 of his DD Form correctly shows he has not completed his first full term of service.

2.  The applicant contends that his records should be corrected to show his rank/grade as SPC/E-4 instead of PV1/E-1.  However, his records fail to show 
that he was ever advanced to SPC/E-4.  There is no evidence (i.e., advancement orders, leave and earnings statement, approved recommendation for advancement, etc.) that shows he was advanced to SPC/E-4.  Evidence of record shows he was reduced by NJP action to the rank/grade of PV1/E-1 in March 2002.  Therefore, the applicant's DD Form 214 for the period ending
26 December 2002 correctly shows his rank/grade as PV1/E-1.

3.  The applicant contends that his RE code should be changed from RE-3 to RE-1.  Evidence of record shows the applicant was discharged from active service for misconduct - pattern of misconduct with an SPD code of "JKA" and an RE code of "3."  The ADRB reviewed the applicant's case and determined that his discharge was improper based on a wrong approval authority of his separation action.  Therefore, the ADRB voted to upgrade the characterization of his service to honorable and to change the narrative reason for his discharge to Secretarial Authority.  However, the ADRB determined their action did not entail a change to his RE code of 3.

4.  His reissued DD Form 214 shows an SPD of "JKK" and an RE code of 3.  It is noted that his SPD code should have reflected "JFF" based on the change to his separation authority and narrative reason for separation.  However, by regulation, the ADRB had the authority to determine if a change to his RE code was required.  The ADRB determined that their action did not entail a change to the RE code.  Additionally, the applicant has failed to provide any further evidence of error or sufficiently mitigating factors to establish a basis for changing his assigned RE code.  Therefore, there is no basis for granting this portion of the applicant's request.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.  The applicant should also understand that other services may have different enlistment requirements.

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)                                         AR20090020977



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ABCMR Record of Proceedings (cont)                                         AR20090020977



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