IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100024731 


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 that his reentry eligibility (RE) code be upgraded.

2.  He states that he feels it was a misdemeanor and nothing harsh. He did his time and paid for the damages.  He states that he would like to have his record cleaned so that he can get benefits.  He continues that he was young at the wrong place and wrong time. 

3.  He provides:

* a undated letter of recommendation from an Army colonel (retired)
* a undated letter of support from a fellow associates
* numerous medical documents from the Abington Memorial Hospital, Abington, PA.

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 on 15 June 1982 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 76W (Petroleum Supply Specialist).

3.  On 2 June 1983, he was convicted by a summary court-martial of failing to be at his appointed place of duty and for disobeying a lawful order from a superior non-commissioned officer (NCO).  His sentence consisted of 30 days confinement at hard labor, a forfeiture of $382.00 pay per month for one month, reduction to the rank/grade of private (PV1)/E-1.

4.  On 13 October 1983, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for stealing stereo equipment from a fellow Soldier.

5.  On 16 November 1983, he was convicted by a special court-martial of one specification of conspiracy to damage private property of two superior NCO’s and two specifications of willfully and wrongfully damaging private property of two NCO’s.  His sentence consisted of confinement at hard labor for three months, a forfeiture of $3827.00 pay per month for three months, and be discharged from the service with a bad conduct discharge.

6.  On 7 December 1984, he was discharged from the Army with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  He had completed 2 years, 2 months, and 25 days of creditable active service with 88 days of lost time due to confinement.  His DD Form 214 shows in item 26 (Separation Code) the entry "JJD."  Item 
27 (Reentry Code) of this DD Form 214 shows the entry "4."

7.  He submitted an undated letter of recommendation from a retired Army colonel.  The author stated that the applicant’s character exceeds his standard of level of performance and behavior that he expects from our best young men.  The author further stated that the applicant is positive, earnest, and professional at all times.  He is an upright young man of high character.  Not satisfied with merely doing his job, on his own initiative, he has continued to advance his education.  He continuously seeks self-improvement and accepts greater responsibility with humility.

8.  He submitted an undated letter of support from a fellow associate.  The author stated that she has known the applicant for many years.  The author further stated that he is a hard worker, a jack-of-all-trades.  He is has been a good provider for his family.  He is a dedicated Christian, who believes in doing the right thing for his family and community.  He is very interested in the youth of his community, always trying to be a good role model.  He is dedicated to his mother and father, helping in whatever he can to help them in many ways.

9.  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.  The SPD code of JJD was the appropriate code for him based on the guidance provided in this regulation for Soldiers separating under the provisions of chapter 3, Army Regulation 635-200, by reason of as a result of court-martial, other.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-4 as the proper reentry code to assign to Soldiers with an SPD of JJD.

10.  Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Paragraph 3-22 of the regulation states that RE-4 code applies to persons separated from the last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

The applicant contends that he needs his RE-4 code changed in order for him to get benefits.  However, the ABCMR does not change records solely to allow former Soldiers to gain benefits.  His post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a RE code and, upon review, the good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.  The evidence of record confirms that his separation processing was accomplished in accordance with the applicable 
regulations to include the RE-4 code assignment.  Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Therefore, the assigned RE-4 code was appropriate.




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)                                         AR20100024731





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ABCMR Record of Proceedings (cont)                                         AR20100024731



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