IN THE CASE OF:	  

		BOARD DATE:	    12 July 2011

		DOCKET NUMBER:  AR20100029837 


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 change of his reentry eligibility (RE) code 4 to an RE code that will allow him to serve once again.

2.  The applicant states he would like to reenter military service to serve his country once again and feel proud of it.  He brings humbleness and pride based on his past experiences and if given the opportunity he knows he will be a good asset to a unit.

3.  The applicant provides a letter of support.

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 (RA) on 12 September 1985.  He completed basic and advanced individual training and he was awarded military occupational speciality (MOS) 95B (Military Police).  The highest rank/grade he attained while serving on active duty was sergeant (SGT)/E-5.

3.  On 27 August 1993, the applicant was found guilty by a general court-martial, pursuant to his plea, of violation of two specifications of Article 120 of the Uniform Code of Military Justice (UCMJ) for carnal knowledge.  As a result, he was sentenced to reduction to the rank/grade of private (PV1)/E1, forfeiture of $500.00 pay per month for 18 months, confinement for 18 months, and a bad conduct discharge.  The General Court-Martial Convening Authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, ordered the sentence executed.  The applicant was subsequently placed in military confinement at the U.S. Army Confinement Facility-Mannheim, Germany, as a result of his court-martial conviction.

4.  Orders 222-14, issued by the 55th Personnel Service Company, dated
15 September 1993, reassigned the applicant to the Regional Correctional Facility, Fort Sill, OK. with a reporting date to be determined by the Mannheim Confinement Facility.

5.  General Court-Martial Order Number 42, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, dated 22 April 1974, affirmed the applicant's sentence.  Article 71(c) having been complied with, the bad conduct discharged was ordered executed.

6.  On 20 May 1994, applicant was accordingly discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, by reason of court-martial, other, with a bad conduct discharge.  He was assigned the separation code of JJD and an RE-4 code.  He completed 7 years, 11 months, and 15 days of creditable active military service with 257 days of time lost due to confinement.

7.  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.  It states that the SPD code JJD is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 3, by reason of court-martial, other.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JJD.

8.  Army Regulation 635-200 further 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for change of his RE code has been carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record shows he was charged with and convicted of the commission of an offense punishable under the UCMJ with a punitive discharge.

3.  The applicant's record of service shows that he was confined for 257 days as a result of a general court-martial.

4.  The applicant was properly assigned an RE-4 code based on the separation authority and narrative reason for separation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20100029837



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ABCMR Record of Proceedings (cont)                                         AR20100029837



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