BOARD DATE: 10 August 2010
DOCKET NUMBER: AR20100008580
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 his Reentry (RE) code of RE-3 be upgraded to a more favorable RE code to allow him to reenter the Army.
2. The applicant states the following:
* He should be allowed an upgrade of his RE code to reenter the Army
* He received a general under honorable conditions discharge and would like to join the Army Reserves
* He is a government employee at China Lake Naval Weapons Center and holds a Secret clearance
* He has never been in trouble with the law
* He has been out of the Army since 2002 and has missed it ever since
* He has a wife and three sons and wants to set a good example for them
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his 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 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 in the Regular Army on 13 August 1997 and was discharged on 6 November 2002 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct with a general under honorable conditions discharge. He completed 5 years, 2 months, and 24 days of active service. He was given an RE code of RE-3 and a Separation Program Designator (SPD) code of "JKQ" (Misconduct).
3. Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.
4. Army Regulation 635-5-1 (SPD Codes) prescribes 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 shows that the SPD code JkQ as shown on the applicants DD Form 214 specified the narrative reason for separation as involuntary release or transfer for Misconduct and that the authority for separation under this separation program designator was Chapter 14-12c,
AR 635-200."
5. Army Regulation 635-200 states, in pertinent part, 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. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes:
a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met;
b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted.
DISCUSSION AND CONCLUSIONS:
1. The applicants statements in regard to his reasons for upgrading his RE code are acknowledged. However, the evidence of record does not indicate that an error or injustice exists in this case.
2. The applicants request that his RE code of "3" be upgraded so he may reenter the Army was considered; however, it does not serve as a basis to change a properly assigned RE code regardless of the Armys current enlistment policies.
3. The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed. His narrative reason for discharge was based on misconduct and there is no basis upon which this reason should be changed. 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.
_______ _ 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) AR20100008580
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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