BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100026707 


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 his reentry eligibility (RE) code be changed so he can reenlist. 

2.  The applicant states:

* his discharge was upgraded to honorable and his narrative reason for separation was changed, but he did not receive a change in his RE code
* he would like to reenter the military, but he is having a hard time in doing so due to his RE code 

3.  The applicant provides:

* diploma 
* academic transcript
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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.  He enlisted in the Regular Army on 10 September 2003.  He completed training and was awarded military occupational specialty 92R (parachute rigger).

3.  On 25 May 2005, nonjudicial punishment was imposed against him for failing to obey a lawful order, making a false official statement, breach of peace by flashing gang signs, breach of peace by using profanity toward an investigator, communicating a threat, and using indecent language.

4.  On 30 August 2005, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct (commission of a serious offense).  On 6 October 2005, the separation authority approved the recommendation for separation and directed that he be issued a general discharge.

5.  On 7 November 2005, he was separated with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He completed 2 years, 1 month, and 28 days of creditable active service.

6.  Item 25 (Separation Authority) of his original DD Form 214 shows the entry "Army Regulation 635-200, paragraph 14-12c(1)."  Item 26 (Separation Code) shows the entry "JKD."  Item 27 (Reentry Code) shows the entry "3."  Item 28 (Narrative Reason for Separation) shows the entry "misconduct, absentee returned to military court."

7.  On 13 December 2005, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 September 2006, the ADRB considered the applicant's request for a discharge upgrade.  Based on a records review, the ADRB determined his separation action was improperly approved at the special court-martial convening authority level.  As a result, the ADRB upgraded his discharge to an honorable discharge.  The ADRB also directed his narrative reason for separation be changed to "Secretarial Authority" under the provisions of Army Regulation 635-200, paragraph 5-3.  These proceedings state, in pertinent part, "This action does not entail a change to the RE code; however, the Board can consider it."

8.  He was issued a new DD Form 214.  Item 25 shows the entry "Army Regulation 635-200, paragraph 5-3."  Item 26 shows the entry "JFF."  Item 27 shows the entry "3."  Item 28 shows the entry "Secretarial Authority."

9.  In support of his claim, he provided a diploma which shows he completed a program of study in practical nursing in August 2010.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code "JFF" is "Secretarial Authority" and the regulatory authority is Army Regulation 635-200, paragraph 5-3.

11.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment 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-1 applies to persons completing an initial term of active service who were fully qualified when last separated
* RE-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

12.  The SPD/RE Code Cross Reference Table, dated 8 September 2005, shows that when the SPD code is "JFF," the Department of the Army directive authorizing the separation program or specific separation will provide the RE code.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the ADRB's decision to upgrade his discharge and change the reason for his separation, it appears he was issued the correct RE code.  The applicant provided no evidence which shows his RE code is incorrect and there is no issue of equity that demands it be changed based upon the ADRB's action.  Therefore, there is no basis for granting his request.

2.  His current RE code is a waivable disqualification.  Therefore, as recruitment requirements change, the applicant may still apply for service in the Armed Forces and request the appropriate waiver.

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)                                         AR20100026707



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ABCMR Record of Proceedings (cont)                                         AR20100026707



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