IN THE CASE OF:	  

		BOARD DATE:	       19 MARCH 2009

		DOCKET NUMBER:  AR20080020036 


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, in effect, that his re-entry (RE) code be upgraded to enable him to further his career in the Army National Guard (ARNG).

2.  The applicant states, in effect, that he has been a Federally Recognized Title 32 Active Guard Reserve (AGR) Soldier in the Iowa ARNG for the last three years.  The applicant would like to move to Florida to be closer to his parents and he would like to be a Title 32 AGR Soldier in the State of Florida to continue his AGR career until retirement, which is 13 years away.  The applicant states that it is an injustice that the Florida ARNG holds a 20 year old discharge against him.  According to Army Regulation 135-18 (The Active Guard Reserve Program), Table 2-3, Rule E, he cannot be accepted as a member of ARNG there.  He states the only way he can be near his family in Florida is if his RE Code is changed.  The applicant contends that in light of his honorable service his request is warranted.

3.  The applicant provides a copy of his DD Forms 214 (Certificate and Release or Discharge from Active Duty); two DA Forms 1059 (Service School Academic Evaluation Reports); a copy of his DA Form 4836 (Oath of Extension or Enlistment or Reenlistment); and a DA Form 2-1 (Personnel Qualification Record) 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 re-issued DD Form 214 for the period 31 May 1988 through 17 August 1989 shows he enlisted in the Regular Army on 31 May 1988.  

3.  The available evidence shows he completed basic combat and advanced individual training and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

4.  Although the complete facts and circumstances pertaining to the applicant’s discharge are not contained in the available records, the re-issued DD Form   214 shows he was separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for misconduct.  Item 27 (Reentry Code) shows he was assigned an RE code of “3.” This document also shows he was assigned a Separation Program Designator (SPD) code of “JKM.”

5.  The applicant subsequently enlisted in the ARNG.

6.  On 7 March 2003, the Army Discharge Review Board (ADRB) upgraded the applicant's character of service to under honorable conditions (General).  The ADRB did not elect to change the applicant’s RE code.

7.  Army Regulation 135-18, paragraph 2–2 (Qualifications for Subsequent Duty in the AGR Program) states that subsequent duty in the AGR Program will be denied if the Soldier has a waivable disqualification under table 2–5, unless the appropriate authority waives the disqualification.  Subsequent duty in the AGR Program will be denied if the Soldier has a nonwaivable disqualification under table 2–6.  Waiver requests will not be considered.

8.  Article I of the Constitution of the United States reserves to the States the right and responsibility to raise the militia; the organized militia being the Army and Air National Guard.  In this regard, appropriate State laws or codes and regulations may be implemented by each Adjutant General (AG) to ensure that the National Guard is ready to satisfy its state and federal missions.  States may impose stricter standards and requirements than provided in National Guard Regulation 600-200, as they affect Reserve of the Army status, provided they are applied uniformly; however, they will not be made less restrictive.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Code should be upgraded.

2.  While the exact facts and circumstances surrounding the applicant's discharge proceedings are not available, his re-issued D Form 214 shows he was separated for misconduct and given an RE Code of 3.

3.  The applicant was granted an upgrade of his discharge on 7 March 2003 by the ADRB.  His RE code was not upgraded.  While his subsequent good service in the ARNG is acknowledged, that alone is insufficient to show that he was improperly given an RE Code of 3 upon his separation in 1989.

4.  Service in the ARNG is at the discretion of the Governor of the State.  The Army Board for Correction of Military Records does not have the jurisdiction to direct the Florida ARNG to accept the applicant as a member.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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.




      _______ _  XXX _______   ___
               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)                                         AR20080020036



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ABCMR Record of Proceedings (cont)                                         AR20080020036



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