BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100016981 


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, correction of his reentry eligibility (RE) code to a code that will allow him to enlist.

2.  The applicant states:

* he was never sentenced by the State court
* the charges against him were all dismissed
* he was told by his commanding officer that 1 year after his discharge, he could return to serve in the Army
* he found out that he received an RE code 3 and a separation program designator (SPD) code of JKQ (misconduct)

3.  The applicant provides:

* a self-authored letter, dated 9 June 2010
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of the Army Discharge Review Board (ADRB) decisional document
* two copies of a letter from a legal assistant, dated 10 March 2003

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.  On 26 February 2002, the applicant enlisted in the Regular Army for 4 years in pay grade E-1.

3.  The applicant’s records show he and another Soldier were involved in an altercation/fight at the Comfort Inn in Hopewell, VA, on 21 September 2002.  Medical attention was dispatched for the other Soldier who was transported to the Medical College of Virginia Hospitals.  The applicant was arrested for felonious assault and the other Soldier was subsequently diagnosed with the following injuries:

* two black eyes
* a broken nose
* a fracture to his maxillary sinus
* an orbital fracture to the left side of his skull
* two lacerations over his left eye

4.  On 2 October 2002, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  His commander cited his arrest in Hopewell, VA, as a basis for the recommendation.

5.  The applicant acknowledged receipt of the notification on 2 October 2002.  The appropriate authority approved the recommendation for discharge and directed the issuance of a general discharge and a JKQ SPD.

6.  Accordingly, he was discharged on 30 October 2002 under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He completed 8 months and 5 days of net active service and he received RE code 3 and SPD code JKQ.

7.  On 30 July 2008, the ADRB denied the applicant’s petition for an upgrade of his discharge.

8.  In the self-authored letter the applicant apologizes for fighting with the other Soldier and he requests another chance at an Army career.  The letter from the legal assistant is a notification to him of the time and date for his court appearance.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  The regulation states 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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  An RE code 3 applies to persons who have a waivable disqualification.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers separated for cause.  The SPD code JKQ has a corresponding RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  His contentions and the documents he submitted were carefully considered.  However, there is no evidence in the available record, nor has the applicant submitted any evidence, showing he was told by his commanding officer he could return to the Army 1 year after his discharge and that all charges against him were dismissed.  His records show he was discharged due to misconduct – commission of a serious offense.  He was assigned RE code 3 and SPD code JKQ based on his reason for discharge.

2.  Although the applicant desires to reenter into the military, it is insufficient justification for granting the relief requested.

3.  An RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to enlist, he should contact a local recruiter to determine his eligibility.  Recruiting personnel can best advise a former service member as to the needs of the Army at the time and are required to process waivers of RE codes.

4.  In view of the foregoing, his request should be denied.

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)                                         AR20100016981



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ABCMR Record of Proceedings (cont)                                         AR20100016981



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