BOARD DATE: 8 December 2011
DOCKET NUMBER: AR20110012088
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 that his REENTRY (RE) code be changed to a more favorable code.
2. The applicant states that he desires his RE code to be changed from a 3 to a more favorable code because he is trying to get back on active duty; however, he has not been able to get back in with an RE code of 3.
3. The applicant provides a copy of his 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 applicants 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 applicants 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 21 July 1993 for a period of 3 years under the Airborne/Infantry training option. He completed his training and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-6 on 1 April 2000 and he served in Iraq from 14 February 2003 to 22 January 2004.
3. On 17 January 2003, the applicant was cited for driving under the influence (DUI), nonjudicial punishment was imposed against him, and it resulted in a suspended reduction to the pay grade of E-5 which was never vacated.
4. On 5 July 2004, he was again cited for DUI and on 13 July 2004 his commander notified him that he was initiating action to discharge him from the service for a pattern of misconduct. He was also advised of his right to appear before an administrative separation board.
5. After consulting with defense counsel the applicant the applicant submitted a request for a conditional waiver in which he agreed to waive his rights to appear before an administrative separation board in return for receiving a characterization of service of no less than honorable.
6. The appropriate authority approved his request and directed the issuance of an Honorable Discharge Certificate.
7. Accordingly, he was honorably discharged on 8 November 2004 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct. He had served 11 years, 3 months, and 18 days of active service. He was assigned a separation program designator code of JKA and an RE code of 3.
8. 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 covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes.
9. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200. A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.
DISCUSSION AND CONCLUSIONS:
1. The applicants administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicants rights.
2. The applicant was separated under the provisions of Army Regulation 635-200, chapter 14; therefore, he was properly assigned an RE code of RE-3 in accordance with the applicable regulations.
3. The applicant has failed to show through the evidence submitted or the evidence of record that he was assigned the wrong RE code at the time of his separation or that there is an error or injustice in his case. Although he is not precluded from applying for a waiver of his RE code at a nearby recruiting office if he is otherwise qualified and the needs of the Army at the time justify his return to service; however, there is no basis for the Board to change his RE code at this time.
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.
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