IN THE CASE OF:
BOARD DATE: 28 July 2011
DOCKET NUMBER: AR20100029777
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 correction of his reentry eligibility (RE) code 3.
2. The applicant states he believes the record to be in error based on the technicalities of his specific situation.
3. The applicant provides no supporting documentation.
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 5 January 2004, completed training, and was awarded military occupational specialty 13B (Cannon Crewmember).
3. The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), as follows:
a. on 30 November 2004, for stealing from the Army and Air Force Exchange Service. His punishment was 45 days of extra duty and 45 days of restriction. In concert with this offense, his off-post pass privileges were revoked and he was required to move from his off-post quarters into the barracks; and
b. on 8 February 2005, for being absent without leave from 1 through 5 December 2005 and making a false official statement.
4. The applicant received negative counseling on 8, 15, 21, 22 November 2004; 25 January 2005; and 24 and 28 February 2005. The 24 February 2005 counseling was for breaking restriction by being in two off-base clubs, fighting in one of the clubs, and lying about being off base.
5. On 28 February 2005, his command initiated separation action under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for commission of a serious offense. His chain of command recommended that the applicant receive a general discharge.
6. On 2 March 2005, the discharge authority approved the discharge and directed that the applicant receive a general discharge.
7. The applicant was discharged on 15 March 2005 with a general discharge. His DD Form 214 shows 1 year, 2 months, and 11 days of creditable service, the separation program designator (SPD) code JKQ, and the RE code 3.
8. Army Regulation 635-200, paragraph 14-12c, provides that a Soldier may be separated for the commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is or would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.
9. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 107 for making false official statements.
10. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. The SPD/RE Code Cross Reference Table establishes RE-3 as the proper code to assign to members separated with SPD code JKQ.
11. Army Regulation 601-280 (Army Retention Program) states that RE codes contained on military discharge documents determine whether or not one may reenlist/reenter in a military service at a later time. Individuals with an RE code 3 can normally reenlist but require a waiver to be processed.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he believes the record to be in error based on the technicalities of his specific situation.
2. An RE code is linked to the SPD. The SPD is issued based on the reason for separation. In effect, in order to warrant a change in the RE code the applicant would need to show the reason for his separation was inappropriate or in error.
3. The record does not contain and the applicant has not provided any evidence to show that his discharge proceedings were not conducted in accordance with law and regulations applicable at the time. The narrative reason for separation, SPD, and RE code were appropriate considering all the facts of the case.
4. Therefore, there is insufficient evidence to grant the requested relief.
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) AR20100029777
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ABCMR Record of Proceedings (cont) AR20100029777
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