IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100024794 


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 the authority for his separation be changed from Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance to a separation code that will allow him to enlist in the active military.

2.  The applicant states his company commander offered him an early discharge for unsatisfactory performance.  He was very young and accepted the discharge after some coaxing and ill advice from some of his superiors without fully understanding he would not be eligible to reenlist.  He made some bad decisions in the past and regrets the errors he made.  He has matured and is willing to take the necessary steps to make the Armed Forces his future.  He feels he still has much to offer the military and will exceed any duties set in front of him due to his experience, level of maturity, and dedication to professionalism he has achieved since his release from active duty.

3.  The applicant provides no additional evidence.

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 12 September 1990, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 95B (Military Police).

3.  On 12 September 1991, the applicant was advanced to private first class/pay grade E-3.

4.  On 16 March 1992, the applicant was reduced to private/pay grade E-1.  On 30 March 1992, he received a letter of reprimand for driving while intoxicated, speeding, failing to keep his vehicle to the right, and for not wearing a seatbelt.

5.  The applicant was again advanced to private/pay grade E-2 on 1 September 1992, to private first class/pay grade E-3 on 12 March 1993, and to specialist/pay grade E-4 on 1 May 1993.

6.  A DA Form 4126 (Bar to Reenlistment Certificate), dated 18 January 1994, shows:

	a.  The applicant received nonjudicial punishment (NJP) on 10 September 1993 for unspecified misconduct in violation of Article 92, Uniform Code of Military Justice, and for violation of a lawful general regulation.

	b.  The applicant received NJP on 5 November 1993 for damaging government property and for dereliction of duty.

	c.  The Bar to Reenlistment Certificate was approved on 25 January 1994.  The applicant did not desire to submit a statement on his own behalf.

7.  The applicant received the following administrative letters of reprimand:

	a.  on 20 July 1994, for displaying actions and making statements showing he lacked good judgment, responsibility, and compassion for a deceased Soldier's family; and

	b.  on 16 September 1994, for game hunting on the military reservation without the proper State-issued hunting license.

8.  The administrative discharge packet is missing from the applicant's military records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was administratively separated on 20 January 1995 under the provisions of Army Regulation 600-200, chapter 13, due to unsatisfactory performance and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His service was characterized as honorable.  Accordingly, he was given a separation program designator (SPD) code of LHJ and a reentry eligibility (RE) code of 3.  He completed 4 years, 4 months, and 9 days of creditable active duty service.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE code 3 applies to persons separated from their last period of service with a waivable disqualification.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of LHJ was the appropriate code for the applicant based on the guidance provided in this regulation for Soldiers separating under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the authority for his discharge and his separation code should be changed so that he may enlist in the active military.

2.  In the absence of evidence to the contrary, it is presumed the administrative discharge proceedings were conducted in accordance with law and regulations applicable at the time.

3.  Considering his record of misconduct, there is no evidence of record showing the authority for separation used as the basis for the applicant's administrative discharge was in error or unjust.

4.  The SPD code LHJ and corresponding RE code 3 establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.

5.  There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for his release from active duty.  While the applicant's desire to reenter active military service is understood, there are no provisions authorizing the change of a separation authority and a separation code for this purpose.

6.  The applicant does have the option of requesting a waiver of the RE code 3.  Should he elect to pursue such a waiver, he should contact his local military recruiter.

7.  In view of the foregoing, the applicant's 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 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)                                         AR20100024794



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ABCMR Record of Proceedings (cont)                                         AR20100024794



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