BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100012335 


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 an upgrade of his reentry eligibility (RE) code of 4.

2.  He states, in effect, that he:

* wanted to enlist to be a Ranger qualified medic, but his recruiter told him he had to enlist in an infantry specialty in order to be a Ranger
* chose to enlist for military occupational specialty (MOS) 11C (Indirect Fire Infantryman)
* did not make it through Ranger training because there was no need for either MOS 11B (Light Weapons Infantryman) or 11C at the time
* he was assigned to the 82nd Airborne Division where all he ever did was perform details such as picking up trash and yard work
* was supposed to have a day off after performing a 24 hour duty, but instead he was falsely accused of missing physical training and was instructed to mow his unit's lawn
* he had enough at that point, went upstairs, packed a bag, and left
* was home for 10 months before his mother was contacted by the police department regarding period of absence without leave (AWOL)
* voluntarily returned himself to military control 
* was not given an explanation or information about his discharge
* was never issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) when he was discharged in April 2003
* attempted to reenlist in 2004, but the recruiter informed him he had to wait 2 years before he was eligible to reenter the service
*  attempted to reenlist again in January 2009 and another recruiter informed him it would be difficult, if not impossible due to the nature of his discharge
* submitted a request for discharge upgrade to the Army Discharge Review Board (ADRB) and it was denied based on the fact that they did not know what happened
* has always regretted what he did and has always wanted to make amends
* has become a productive member of society and volunteers his support for numerous organizations
* repaid his enlistment bonus and would gladly repeat basic training
* knows that he has a lot to offer the Army and is very excited about the prospect of returning and starting a new chapter in his family's lives

3.  He indicated he provided a personal statement and a letter of reference; however, the letter of reference was not enclosed with 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 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 (RA) on 21 August 2001.  Upon completion of initial entry training, he was awarded MOS 11C.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  The complete facts and circumstances of his discharge are not available for review in this case; however, his record contains the following pertinent documents:

* a DA Form 4187 (Personnel Action) showing his duty status was changed from "Present for Duty" to AWOL, effective 15 April 2002
* a DA Form 4187 showing his duty status was changed from AWOL "Dropped from the Rolls," effective 15 May 2002
* a DD Form 458 (Charge Sheet) showing he was charged with violation of Article 85 of the Uniform Code of Military Justice (UCMJ) for departing his unit in an AWOL status on 15 April 2002 and remaining absent
* a DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) showing he was reported to law enforcement agencies as a deserter on 15 May 2002
* a DD Form 616 (Report of Return of Absentee) showing he surrendered himself to military authorities on 3 March 2003

4.  His record also contains a letter from the Acting Director of the Personnel Actions and Services Directorate of U.S. Army Human Resources Command, St. Louis, MO (HRC-STL), in response to an inquiry from a Member of Congress on the behalf of the applicant on 30 August 2004.  The Acting Director informed the Member of Congress they had been unable to locate a copy of the applicant's DD Form 214 and that a Statement of Service from the Department of Defense Manpower Data Center is an official replacement document.  This statement contains the following pertinent information pertaining to the applicant:

* Applicant's name, Social Security Number, and date of birth
* Branch of Service:  Army
* Dates of Active Duty:  21 August 2001 to 3 April 2003
* Character of Service:  Under Other than Honorable Conditions
* Reenlistment Eligibility Code:  4
* Reason for Discharge (Narrative):  Misconduct
* Reserve Service:  None

5.  On 2 December 2009, the President of the ADRB informed him that the board reviewed his case and determined he was properly and equitably discharged and that his request for a change in the character and/or reason of his discharge was denied.

6.  Army Regulation 635-200 (Personnel Separations) 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

7.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It provide, in pertinent part, that the 3-character SPD codes beginning with JK are the appropriate codes to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 for Misconduct.  The third character of the SPD code is determined based upon the specific form of misconduct for which the service member is being separated.

8.  The SPD/RE Code Cross Reference Table indicates that RE code 3 or 4 were proper codes to assign members separated with an SPD code beginning with JK at the time of the applicant's discharge.  The specific RE code is determined based upon the third character of the SPD code which depicts the specific form of misconduct for which the service member is being separated.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded was carefully considered and determined to lack merit.

2.  Discharges under the provisions of Army Regulation 635-200 for misconduct may result in the assignment of an RE code of either 3 or 4 depending on the specific form of misconduct for which the Soldier is being separated.

3.  Although on the surface it appears he may have been discharged for desertion, the complete facts and circumstances of his discharge are not available for review in this case and government regularity insofar as the discharge process must be presumed.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In the absence of evidence to the contrary, it is further presumed that the applicant's discharge reflects his overall record of military service and he was appropriately assigned an RE code of 4 based on his narrative reason for separation.

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)                                         AR20100012335





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ABCMR Record of Proceedings (cont)                                         AR20100012335



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