IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100009549 


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, an upgrade of his Reentry Eligibility (RE) code. 

2.  The applicant states, in effect:

*   his RE code is unjust
*   his RE code is hindering him from enlisting in the Marine Corps Reserve

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a personal statement.

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 record shows he enlisted in the Regular Army on 
4 September 2002.  The applicant received an uncharacterized discharge on 
4 October 2002. 

3.  On 23 September 2002, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to entry level performance and conduct.  The commander cited the specific reasons for his proposed separation action were the applicant's failure to adapt and refusal to train. 

4.  On 23 September 2002, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have a medical examination prior to his discharge.  He submitted a statement in his own behalf that indicated, in effect:

* he felt under the circumstances of war, he was not capable of killing
* he refused to fire a gun or throw a grenade
* he refused to train with the US Army or any other group that used violence
* he had an attention deficit disorder, hyperactivity disorder which made standing still or concentrating very hard
* he had problems listening and following instructions

5.  On 24 September 2002, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 11.

6.  On 4 October 2002, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, by reason of entry level status performance and conduct, with an entry level status discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 
1 month and 1 day of creditable active service and shows the following:

* Item 24 (Character of Service) "Uncharacterized"
* Item 25 (Separation Authority) "Army Regulation 635-200, chapter 11-3a"
* Item 26 (Separation Code) "JGA"
* Item 27 (Reentry Code) "3" 
* Item 28 (Narrative Reason for Separation) "Entry Level Separation"

7.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

8.  Army Regulation 635-200, paragraph 3-9, provides, in pertinent part, that a separation will be described as an entry level separation with service uncharacterized, if processing is initiated while a Soldier is in an entry level status.  This document provides, in pertinent part, that entry-level status terminates 180 days after the Soldier's entry on active duty.

9.  Army Regulation 635-5-1 (Separation Program Designator (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 in effect at the time shows the SPD code of "JGA" as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for "Entry Level Status” and the authority for separation under this SPD was “Army Regulation 635-200, paragraph 11-3a."

10.  By regulation an RE code of 3 is the proper code to assign members who were separated under the provisions of Army Regulation 635-200, by reason of an entry level status with an SPD code of JGA. 

11.  Pertinent Army regulations provide 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.  Chapter 3 of that regulation prescribes basic
eligibility for prior service applicants for enlistment.  That chapter
includes a list of armed forces RE codes, including RA RE codes.  RE-3
applies to persons who are disqualified for continued Army service, but the
disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

The applicant's contention that his RE code of 3 should be changed was carefully considered.  However, by regulation, the applicant was properly assigned an RE code of 3 based on his voluntarily separating under the provisions of chapter 11, Army Regulation 635-200.

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)