IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007763 


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 the entries in item 9c (Authority and Reason) and item 10 (Reenlistment Code) of his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states the reenlistment (RE) code of RE-3 is preventing him from enlisting in the U.S. Army.

3.  The applicant provides a copy of his DD Form 214 in support of his request.

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) for a period of 3 years on 12 May 1977.  Upon completion of training he was awarded military occupational specialty 67Y (Attack Helicopter Repairman).

3.  On an unspecified date in March 1978, the applicant's commander notified him that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program).  The reasons for the commander's proposed action were the applicant's misconduct, inefficiency, and lack of motivation.

4.  On 6 March 1978, the applicant acknowledged notification of the proposed discharge action and voluntarily consented to the discharge.  He also indicated that statements in his own behalf were not submitted to the commander.  The company commander recommended approval of the applicant's discharge.

5.  On 6 March 1978, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-31, with a character of service of honorable.

6.  The applicant's DD Form 214 shows he was honorably discharged on 22 March 1978.  At the time he had completed 10 months and 11 days of net active service; 3 months and 9 days of prior inactive service; and 1 year, 1 month, and 20 days total service for pay.

	a.  Item 9c shows the entry "Paragraph 5-31, [Army Regulation] 635-200 [Separation Program Designator] JGH."

	b.  Item 10 shows the entry "RE-3."

7.  On 13 October 1982, the applicant submitted a letter to the U.S. Army Enlistment Eligibility Activity (USAEEA) requesting an upgrade of his RE code.

8.  On 16 November 1982, the Commander, USAEEA, responded to the applicant's inquiry and advised him that his RE code of RE-3 may not be changed since it correctly indicates that he requires a waiver prior to enlistment in the RA.  The applicant was informed that he is ineligible to reenter the RA unless a waiver of his last discharge is granted by the Department of the Army.  


He was also advised to visit the nearest recruiting station for assistance since recruiting personnel have the responsibility for initially determining if waiver consideration is appropriate.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for correction of the reason for his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive) and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  It shows that for Soldiers who are discharged under the provisions of Army Regulation 635-200, paragraph 5-31, for failure to maintain acceptable standards for retention, the SPD code is JGH.
 
11. The SPD/RE Code Cross Reference Table shows that a Soldier issued an SPD code of JGH will be assigned an RE code of 3.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides 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.  An RE code of 3 applies to persons who are not eligible for reenlistment unless waiver is granted.  

13.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Enlisted Qualification Record, Officer Qualification Record, enlistment/
reenlistment documents, personnel finance records, discharge documents, separation orders, military personnel records jacket, or any other document authorized for filing in the official military personnel file.

	b.  Paragraph 2-7 contains item-by-item instructions for completing the DD Form 214.



		(1)  Item 9c states to enter the statutory and/or regulatory authority for separation plus the SPD per Army Regulation 635-5-1.

		(2)  Item 10 states to see DA Form 1315 (Reenlistment Data), DA Form 20 (Enlisted Qualification Record), and table 1-3 of Army Regulation 601-210 for the proper RE code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the entries in item 9c and item 10 of his DD Form 214 should be corrected because they are preventing him from enlisting in the U.S. Army.

2.  Records confirm the applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-31.  In addition, the governing Army regulations confirm that the entries in both item 9c and item 10 of the applicant's DD Form 214 are valid and appropriate entries based on his approved separation.

3.  As a matter of information, the ABCMR does not change the entries on a former Soldier's DD Form 214 solely to enhance his or her eligibility to reenter the U.S. Army.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20100007763



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)