IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013137 


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 Eligibility (RE) code on his 20 March 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  He states he was charged with adultery and he was not given the right to counsel.  He adds that he is currently serving in the North Carolina Army National Guard (ARNG) and just completed a tour in Baghdad.  
 
3.  The applicant provides a copy of his 20 March 1992 DD Form 214.

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
25 August 1989. 

3.  On 9 January 1992, nonjudicial punishment was imposed against him for assaulting his wife.

4.  On 15 January 1992, he received a letter of reprimand for admitting to the company commander that he committed adultery with another service member's wife.

5.  On 24 January 1992, a bar to reenlistment was approved on him for the following reasons:

* Frequent traffic violations
* Failure to manage personal, marital, or family affairs
* Personal behavior that brought discredit upon his unit or the Army

6.  On 26 February 1992, his unit commander notified him of the intent to recommend that he be separated from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of commission of a serious offense:  assault upon his wife and his admission of adultery.

7.  On 4 March 1992, the applicant's commander recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of commission of a serious offense.

8.  On 6 March 1992, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority directed that the applicant be issued a General Discharge Certificate.

9.  On 7 March 1992, he consulted with military counsel.  He was advised of the basis for the contemplated separation action and its effects and the rights available to him.  He requested to be represented by counsel.  He acknowledged that he may encounter substantial prejudice in civilian life if a general discharge was issued.  He further acknowledged that if he received a discharge certificate/character of service that was less than honorable, he may make an application to the Army Discharge Review Board or to the ABCMR for an upgrade of his discharge.  He acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded. The applicant also acknowledged he understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  The counselor signed the form indicating that he advised the applicant of his rights.

10.  The applicant's DD Form 214 shows he was discharged on 20 March 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct, commission of a serious offense with a general discharge.  He was credited with completing 2 years, 6 months, and 26 days of active service.  Item 26 (Separation Code) shows he was assigned a code of "JKQ" and item 
27 shows his RE code as "3."

11.  On 27 June 2005, the applicant enlisted into the ARNG where he is currently serving.

12.  Army Regulation 635-5-1 (Separation Program Designator (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 states, in pertinent part, that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, commission of serious military or civilian offense.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  

   a.  Paragraph 14-12c provides for the separation of Soldiers for commission of a serious military or civil offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  This regulation also provides, 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:

		(1)  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.

		(2)  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. 

		(3)  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was separated due to commission of a serious offense.  The commander cited the applicant's assault upon his wife and adultery as justification for the discharge action.  Therefore, he was assigned an RE code of 3 which is consistent with the reason for separation. The applicant has failed to show through the evidence submitted with his application or the evidence of record that his assigned RE code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

2.  The applicant was notified of the discharge action on 26 February 1992.  Based on the date of the separation authority's approval of the applicant's discharge action (6 March 1992), it appears the applicant consulted with counsel one day after his chapter 14 was approved (7 March 1992).  However, the applicant was not separated until 13 days after his discharge was approved.  This allowed him and his counsel sufficient time to address any issues they may have had prior to the discharge being processed.  

3.  Absent any evidence of error or injustice in the discharge process, the assigned RE code is proper and equitable based on the authority and reason for discharge.  As a result, there is an insufficient evidentiary basis to support a change of the RE code.  

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)                                         AR20100013137



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ABCMR Record of Proceedings (cont)                                         AR20100013137



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