BOARD DATE: 16 September 2010
DOCKET NUMBER: AR20100008018
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 reenlistment eligibility (RE) code be changed
2. The applicant states he was having family and personal problems as a young Soldier and acted irresponsibly. He has matured and wishes to rejoin the Army.
3. The applicant provides a copy of his DD Form 214 (Release or Discharge from Active Duty).
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 applicants 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 applicants 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 at age 18 on 23 July 2003, completed training, and was awarded the military occupational specialty 92A (Automated Logistical Specialist).
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows on:
a. 15 July 2004, for failure to go to his place of duty, and
b. 12 August 2004, for possession of marijuana on a military installation. This NJP included a reduction to pay grade E-1.
4. On 3 October 2004, the applicant was arrested for stealing over-the-counter medications from the Army and Air Force Exchange System (AAFES).
5. On or about 16 December 2004, the applicant's unit commander initiated separation action for misconduct based on his NJP for marijuana and the larceny of AAFES property. The unit commander recommended the applicant receive a general discharge.
6. On 20 December 2004, after consulting with counsel, the applicant acknowledged the separation recommendation. He did not submit any statements on his own behalf.
7. The discharge authority approved the separation recommendation under the provisions of Army Regulation 635-200, paragraph 14-12c (2), for misconduct - commission of a serious offense. He directed that the applicant be issued a general discharge.
8. On 25 January 2005, the applicant was discharged, under honorable conditions, with 1 year, 6 months, and 3 day of creditable active service. His
DD Form 214 shows he was given a separation program designator (SPD) of JKK and an RE code of 4.
9. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U. S. Army Reserve for enlistment and reenlistment. Included in this regulation is the SPD/RE Code Cross-Reference Table that indicates an SPD of JKK requires an RE Code of 4.
10. Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time. In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem. Individuals with an RE code of 3 can normally reenlist but will probably require a waiver to be processed. Individuals with an Army RE code of 4 are normally not eligible to reenlist in the Army or join another service. Further, an RE-4 applies to persons separated in pay grade E-2 and below.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he was having family and personal problems as a young Soldier and acted irresponsibly. He has matured and wishes to rejoin the Army.
2. The record does not contain and the applicant has not provided any evidence that he made his command aware of any family problems that might have impacted his conduct or mitigated his separation processing.
3. The RE code is appropriate not only for the reason for his separation (commission of a serious offense) but also based on the fact that he was in pay grade E-1 at the time of separation. In order to change the RE code both the reason for his separation (with the accompanying SPD) and his pay grade would have to be changed. The applicant has provided insufficient evidence to warrant any correction of his records.
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) AR20100008018
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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