IN THE CASE OF:	  

		BOARD DATE:	  10 November 2011

		DOCKET NUMBER:  AR20110004624 


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 a change to his reentry eligibility (RE) code from RE-3 to a more favorable code.

2.  The applicant states he was discharged due to his inability to pass the Army Physical Fitness Test (APFT) at the time.  Although he was given time to prepare and pass a second retest, he was experiencing personal/marital problems at the time and he dedicated his time and energy to saving his marriage.  The overall Army culture at the time was not supportive of personal problems, particularly in the recruiting field where making mission was a priority.  During his separation process, he was told a waiver of a hearing would allow him to be eligible for enlistment within 3 years of signing this waiver.  He is now being told he is ineligible to reenter military service.  He feels this is a discrepancy that needs to be addressed and/or rectified.

3.  The applicant provides a request for conditional waiver, dated 8 November 1995.

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's records show he enlisted in the Regular Army on 15 March 1984 and he held military occupational specialties 19E (M-60 Armor Crewmember) and 00R (Recruiter).

3.  He served through multiple reenlistments in a variety of stateside and/or overseas assignments and he attained the rank/grade of sergeant first class/E-7.

4.  On 8 November 1995, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander stated the applicant had failed the APFT on three separate occasions (8 May, 21 August, and 24 August 1995) despite being given every opportunity to get into shape.

5.  On 8 November 1995, the applicant acknowledged receipt of the commander's intent to separate him and he consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights available to him.  He further acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving an honorable character of service.  He also acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

6.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.

7.  On 26 January 1996, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the applicant be furnished an honorable character of service.  Accordingly, the applicant was discharged from active duty on 23 February 1996.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 11 years, 11 months, and 9 days of creditable active service.  Additionally, this form shows in:

* item 25 (Separation Authority) – Army Regulation 635-200, chapter 13
* item 26 (Separation Code) – JHJ
* item 27 (Reentry Code) – 3
* item 28 (Narrative Reason for Separation) – unsatisfactory performance

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers 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-1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE-3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  At the time of the applicant's separation, the SPD code JHJ was the appropriate SPD code for Soldiers separated for unsatisfactory performance under the provisions of chapter 13 of Army Regulation 635-200.

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers and shows the SPD code and its corresponding RE code.  The table in effect at the time of his discharge shows that SPD code JHJ had a corresponding RE code 3.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms the applicant displayed a pattern of unsatisfactory performance by repeatedly failing his APFT.  Accordingly his chain of command initiated separation action against him.  The separation authority approved the recommendation for discharge and he was honorably discharged under the provisions of Army Regulation 635-200, chapter 13.

2.  His RE code was assigned based on his discharge under the provisions of chapter 13 of Army Regulation 635-200 due to his unsatisfactory performance.  Absent the unsatisfactory performance (APFT failures), there was no fundamental reason to process him for discharge.  The only valid narrative reason for separation permitted under chapter 13 is "unsatisfactory performance" and the appropriate SPD code associated with this separation is JHJ.

3.  By regulation, SPD code JHJ has a corresponding RE code 3 which would have not permanently prohibited him from reentering military service.  An RE-3 is assigned to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable meaning they are ineligible unless a waiver is granted.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for 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.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for determining a former Soldier's reentry rank/grade.

5.  With respect to the conditional waiver, prior to his discharge, he executed a conditional waiver wherein he agreed to waive consideration of his case by an administrative separation board with the stipulation he would receive an honorable character of service.  In connection with this waiver, he acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.  The conditional waiver did not promise him an automatic enlistment after the 2-year period; it simply stipulated he could apply for enlistment after 2 years.

6.  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 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)                                         AR20110004624



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ABCMR Record of Proceedings (cont)                                         AR20110004624



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