IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110013583 


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 her reentry (RE) code be changed.

2.  The applicant states she was administratively separated and given an under honorable conditions (general) discharge (GD).  She applied for and received an upgrade through the Army Discharge Review Board (ADRB).  The ADRB found she was entitled to a hearing before a board of officers but was not afforded the opportunity.  She wants to continue her military career and requires an RE code upgrade in order to reenlist.

3.  The applicant provides copies of her:

* ADRB Case Report and Directive
* honorable discharge (HD)

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.  With prior active and inactive service, the applicant served in the Regular Army from 14 May 1999 to 6 November 2001.  She was a private first class (PFC)/E-3 and held military occupational specialties (MOS) 91W (Health Care Specialist) and 92A (Automated Logistical Specialist).

3.  The applicant's Official Military Personnel File (OMPF) on the Interactive Personnel Electronic Records Management System contains an administrative separation packet which shows:

   a.  Two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

       (1)  On or between 1 January and 28 February 2001, violating a lawful general regulation, to wit:  paragraph 4-14b, Army Regulation 600-20, by wrongfully fraternizing with a staff sergeant, for which she received a reduction from E-4 to E-3, a forfeiture of $692.00 pay for 2 months, suspended to be automatically remitted if not vacated before 10 August 2001, and 45 days of extra duty.

       (2)  On or about 9 July 2001, failing to go at the time prescribed to her appointed place of duty, to wit:  extra duty, for which she received reduction from E-3 to E-2, suspended to be automatically remitted if not vacated before 
23 January 2002, and extra duty for 14 days.

   b.  One supplementary action under Article 15, UCMJ, for on or about
15 June 2001, failing to go at the time prescribed to her appointed place of duty, to wit:  extra duty, for which the suspended forfeiture of $692.00 pay for 2 months was vacated.

   c.  Numerous negative counseling statements for disobedience, being disrespectful, failure to repair, etc.

4.  The applicant was informed of her commander's intent to discharge her under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct.  She acknowledged notification.  The action was forwarded to the applicant's intermediate commander on 7 September 2001, who recommended approval with a GD.

5.  On 20 September 2001, the approving authority approved the applicant's discharge directing that she receive a GD.  On 6 November 2001, she was discharged with an RE code of 3 and a separation program designator (SPD) code of JKA.

6.  The ADRB, on 25 April 2002, determined that the applicant was entitled to a hearing before a board of officers, but she was not properly advised of that fact.  That board therefore voted to upgrade the applicant's discharge from a GD to an HD; however, they specifically elected not to change the applicant's RE code.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

8.  Army Regulation 635-200 also states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Table 3-1 included a list of the RA Reenlistment Eligibility Codes (RE codes).  An 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.  An 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 unless a waiver is granted.  An RE-4 applies to Soldiers separated from the last period of service with a nonwaivable disqualification.

9.  Army Regulation 635-5-1 (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 of "JKA" was used to represent misconduct under chapter 14, Army Regulation 635-200.

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table shows the SPD code and corresponding RE code.  At the time of the applicant's separation, the SPD code of "JKA" had a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a change in her RE code.

2.  The applicant's desire to return to service is commendable; however, her record clearly shows she had a serious problem with authority which put her at odds with her chain of command.  Her discharge for misconduct under chapter 14-12b of Army Regulation 635-200 was correct.

3.  Even though the ADRB upgraded her discharge from a GD to an HD that board did so because the applicant was entitled to a board of officers hearing; but she was not properly advised of that option.  However, the ADRB elected not to change her RE code.

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)                                         AR20110013583



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ABCMR Record of Proceedings (cont)                                         AR20110013583



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