BOARD DATE:	15 July 2010  

		DOCKET NUMBER:  AR20090021731 


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 her Reentry Code (RE-code) be changed from RE-3 to RE-1.

2.  The applicant states, in effect, that she understands that an RE-3 is the standard code for pregnancy but she wants to have it changed to RE-1 so she can reenlist.

3.  The applicant provides her 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's record shows that she enlisted in the Maryland Army National Guard (MDARNG) on 11 August 1992 and was ordered to active duty for training on 29 October 1992. 

3.  The applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:

* 31 March 1993 – failure to obey a lawful order 
* 29 April 1973 – failure to be at her prescribed place of duty, failure to obey a lawful order

4.  The applicant's records also show that she received ten General Counseling statements from 15 February through 12 March 1993 for failure to make bed check, failure to be at appointed place of duty, failure to obey a direct order, lack of self-discipline, poor attitude, and lack of motivation.

5.  On 8 April 1993, the applicant's commander notified her that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to entry level performance and conduct.  The commander cited as the specific reasons for his proposed action the applicant's unwillingness or ability to adapt socially or emotionally to the military environment, poor, attitude, failure to respond to positive counseling, and undisciplined behavior. 

6.  On the same day, the applicant acknowledged receipt of the proposed action against her and consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  Subsequent to receiving this counseling, the applicant completed her election of rights by waiving her right to have her case considered by an administrative separation board and declined to submit statements in her own behalf.

7.  On 23 March 1993, the separation authority approved waiver of the applicant's rehabilitative transfer and approved the discharge under the provisions of Army Regulation 635-200, chapter 11.

8.  On 29 March 1993, the applicant was released from active duty and discharged from the Reserve of the Army under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status performance and conduct, with an entry level status discharge.  The DD Form 214 she was issued at the time confirms she completed a total of 
6 months and 15 days of creditable active service and shows the following:

* Item 24 (Character of Service) "Uncharacterized"
* Item 25 (Separation Authority) "Army Regulation 635-200, chapter 11-3a"
* Item 26 (Separation Code) "JGA"
* Item 27 (Reentry Code) "3" 
* Item 28 (Narrative Reason for Separation) "Entry Level Separation"

9.  The applicant submitted a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) which shows she was separated from the MDARNG on 14 June 1993.

10.  The applicant submitted a birth certificate for a child born on 20 April 1998. 

11.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

12.  Army Regulation 635-200, paragraph 3-9, provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in entry level status.  

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time showed the SPD code of “JGA” as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for “Entry Level Status” and that the authority for separation under this separation program designator was “Army Regulation 635-200, paragraph 11-3a."

14.  By regulation, RE 3 is the proper code assigned to members who were separated under the provisions of Army Regulation 635-200, by reason of an entry level status with an SPD code of JGA.  

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


DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant received her RE-3 code due to receiving an entry level discharge.  Although the applicant submitted evidence showing she gave birth 7 years after her release from active duty, there is no evidence of record nor did the applicant submit any evidence showing she was pregnant while she was on active duty or in the MDARNG.   Therefore, neither her RE-3 code or her discharge was related to her pregnancy.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the assignment of her RE code.  All requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process. There is no evidence of error or injustice.  

3.  The applicant is advised that although her RE code has not been upgraded, this does not mean that she is disqualified from reenlistment.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if she desires to enlist, the applicant should contact a local recruiter to determine her eligibility.  Those individuals can best advise a former service member as to the needs of the service at the time and are required to process waivers of RE codes.

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)                                         AR20090021731



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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