IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20100000798 


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 reentry eligibility (RE) code and narrative reason for separation on his 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states he joined the California Army National Guard in 1994 and in order to do that he received a waiver.  He states he has now been in the Army National Guard for the past 15 years and was told that by virtue of the fact that he received a waiver to join the Army National Guard, his RE code would be automatically updated.  He states that the changes would make it possible for him to progress in his career, but as for now he is unable to do so with the current code.  He states he has served 15 years since the incident and believes his record shows that the previous problem no longer exists and a change in the code is warranted.

3.  The applicant provides a copy of his 1992 DD Form 214.

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.  Evidence available to the Board indicates the applicant enlisted in the Regular Army on 22 May 1990.  He successfully completed training at Fort Knox, Kentucky, and following completion of training he was assigned to a cavalry unit at Fort Knox.  By April 1991 he had been advanced to pay grade E-3.

3.  In June 1991 the applicant was punished under Article 15 of the UCMJ (Uniform Code of Military Justice) for multiple incidents of failing to go to his appointed place of duty (the Fort Knox Army Education Center).

4.  In January 1992 the applicant was notified of his unit commander's intent to recommend him for elimination from the U.S. Army under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for unsatisfactory performance.  The unit commander indicated he was recommending the applicant be issued a general discharge under honorable conditions.  The commander stated the reasons for the proposed recommendation were the applicant's receipt of the UCMJ action, counseling for bad checks, and disobeying a lawful order.  On 10 January 1992 the applicant acknowledged receipt of the proposed separation action.

5.  The appropriate authority approved the applicant's separation action and specified the issuance of a General Discharge Certificate.

6.  The applicant was discharged on 29 January 1992 under the provisions of Army Regulation 635-200, chapter 13.  His service was characterized as under honorable conditions.  Item 26 (Separation Code) of his DD Form 214 contains the entry "JHJ."  Item 27 (Reentry Code) contains the entry "3" and item 28 (Narrative Reason for Separation) contains the entry "unsatisfactory performance."

7.  In June 1994 the applicant enlisted in the California Army National Guard after receiving a waiver for his prior discharge for unsatisfactory performance and 
RE-3 code, both of which were considered disqualifying for reenlistment purposes.  The applicant has continued to serve in the California Army National Guard and in January 2010 was promoted to rank of staff sergeant.

8.  In 1997 the Army Discharge Review Board concluded the applicant's 1992 discharge was both proper and equitable and denied his petition to upgrade the character of and reason for discharge.
9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, to include separation of individuals who, in the commander's judgment, would not develop sufficiently to participate satisfactorily in further training or if it was likely that the circumstances forming the basis for separation proceedings would continue or recur.  Service of individuals separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records.

10.  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 of that regulation prescribes the basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  An RE code 3 indicates separation from the last period of service with a disqualification but the disqualification can be waived.

11.  Army Regulation 635-5-1 (Separation Program Designator (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 notes that an SPD code of "JHJ" is the appropriate code when the reason for discharge is "unsatisfactory performance."  Additionally, the SPD/RE Code Cross Reference Table establishes RE codes to be assigned for each SPD.  This table states that when the SPD is "JHJ," then an RE code of 3 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has not provided any evidence that his administrative separation was not accomplished in accordance with applicable regulations.  His separation was based on his unsatisfactory performance which, considering the facts of his case, was appropriate.  The fact that he was permitted to enlist in the California Army National Guard and has continued to serve satisfactorily is not evidence of any error or injustice in his 1992 separation action, nor does it serve as a basis to change either the reason or the RE code for that separation.

2.  The Army does not now nor has ever automatically changed a former service member's RE code or reason for separation based solely on the fact that the individual was granted a waiver which permitted him or her to return to military service.

3.  In view of the circumstances in this case, the applicant is not entitled to a change in the reason for his 1992 discharge or a change in the associated RE code.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  He has not shown error, injustice, or inequity for the relief he now seeks.

4.  The mere passage of time does not serve as a basis to change a properly assigned RE code or reason for one's administrative discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090013164



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ABCMR Record of Proceedings (cont)                                         AR20100000798



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