BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100011016


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 the reentry (RE) code on her DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states she would like to serve in the military and requires an RE code change from RE-3 to one which permits reentry.

3.  The applicant provides:

* her DD Form 214
* a handwritten statement dated 24 February 2010
* two letters of support dated 30 January 2010 and 1 February 2010

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 4 years on 7 August 2003.  Trained in military occupational specialty (MOS) 92A (Automated Logistical Specialist), she was assigned to the 3rd Aviation Regiment, Fort Campbell, KY.

3.  The applicant's records contain a 10 December 2004 record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

* failure to go at the time prescribed to her appointed place of duty on two occasions on 24 November 2004
* disobeying a lawful order from her first sergeant on 2 September 2004
* absent without leave (AWOL) from 26 November 2004 to 6 December 2004

As punishment, she was reduced to the rank of private (PVT/E-1), made to forfeit $596.00 pay per month for one month, and made to perform 45 days of extra duty.

4.  On 10 January 2005, the applicant's commander notified her of initiation of separation action under the provisions of chapter 14, Army Regulation 635-200 for misconduct.  The commander recommended she receive a general, under honorable conditions discharge.

5.  On 13 January 2005, the approving authority approved the recommended separation action and directed issuance of a general discharge.

6.  On 25 January 2005, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  She was given a separation (SPD) code of "JKQ" and an RE code of RE-3.

7.  The applicant's records contain an NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service) showing she enlisted in the Virginia Army National Guard (VAARNG) on 29 August 2006.  It further shows she was discharged from the VAARNG and as a Reserve of the Army on 7 April 2007 because of an erroneous enlistment.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering her case on 20 March 2008, denied her request.

9.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  At the time of the applicant's separation, the SPD code of "JKQ" was used to represent misconduct under paragraph 14-12c of Army Regulation 635-200.

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component 
Soldiers.  The cross reference table shows the SPD code and corresponding RE code.  During the applicant's separation, the SPD code of "JKQ" had a corresponding RE code of RE-3.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

12.  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 RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA Reenlistment Eligibility Codes (RE codes).  An 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.  An 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.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a change in her RE code.

2.  The applicant's desire to return to service is commendable; however, there is no error or injustice concerning her 2005 RA discharge.  The authority and reason are correct, and the RE code assigned her is the proper code based on the authority and reason.

3.  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)                                         AR20100011016





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ABCMR Record of Proceedings (cont)                                         AR20100011016



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