IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030546 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code of 1 instead of 3.

2.  The applicant states his RE code 3 prevents him from reentering the military service.  Both he and his wife were active duty members of the Armed Forces, but due to family related emergencies they could no longer provide a valid family care plan.  As a result, his commander initiated an administrative separation on him.  Now that they are both out of the military, his wife can care for their child.  He wants to reenter the military.

3.  The applicant provides copies of his DD Form 214 and a statement from his spouse indicating her intent to care for their child.

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 14 August 2002, the applicant enlisted in the Regular Army.  He was awarded military occupational specialty 31B (Military Police) and he was advanced to rank/grade of specialist (SPC)/E-4 on 1 April 2004.

3.  On 5 March 2007, the applicant stated in a memorandum for record that he was unable to complete the required family care for him to be mission ready at any given time.  He further stated that his wife had wished to remain in the U.S. Air Force.  Consequently, he was not able to perform mission readiness exercises or to work more than an 8-hour per day work schedule.

4.  On 5 March 2007, the applicant's commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, paragraph
5-8, due to parenthood because he had failed to maintain a family care plan.

5.  The applicant consulted with counsel and he waived his rights.  He elected to make a statement in his own behalf.

6.  On 13 March 2007, the applicant wrote another memorandum for record to inform his commander that he had exhausted all options to successfully prepare a family care plan.  Because his wife decided to remain in the U.S. Air Force, the applicant stated it was in the best interests of his family that he separate from the military service.

7.  On 22 March 2007, the appropriate authority approved the chain of command's recommendation for discharge and directed the issuance of an honorable discharge

8.  On 3 April 2007, the applicant was accordingly discharged.  He had completed 4 years, 7 months, and 20 days of creditable active service.  His DD Form 214 shows his character of service as honorable.  He was issued a separation program designator (SPD) code JDG for parenthood and an RE code 3.

9.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes 


including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That 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 (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 JDG was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating due to parenthood.  Additionally, Table 2-3 (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 his DD Form 214 should be changed to give him an RE code 1 because his wife can now care for their family and he wants to reenter the military service.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The RE code 3, establishing his enlistment/reenlistment ineligibility without waiver, was correctly entered on his DD Form 214 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 the RE code 3.  The applicant’s desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code for this purpose.

6.  The ABCMR does not establish eligibility for entry into the Army nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service and advise a former service member as to the needs of the service at the time.  They are also responsible for processing enlistment waivers.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030546



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ABCMR Record of Proceedings (cont)                                         AR20100030546



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