IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110015905 


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 reenlistment eligibility (RE) code be changed.

2.  The applicant states he would like his RE code changed so he can come back in the Army.  

3.  The applicant provides various miscellaneous military documents, leave and earnings statements, and five third-party character references in support of his application.  

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 13 February 1986, the applicant enlisted in the Regular Army and he was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman).  The available evidence shows he was advanced to specialist four (SP4)/E-4 on 1 May 1987 and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class (PFC)/E-3 for cause on 30 January 1989.  

3.  The applicant’s disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three separate occasions between 30 January and 19 May 1989, and an extensive record of formal counseling by members of his chain of command for a myriad of performance and conduct related matters between 23 November 1988 and 25 May 1989.  

4.  On 15 June 1989, the applicant's unit commander notified the applicant that action was being initiated to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, by reason of misconduct (pattern of misconduct) because all attempts to make him a useful Soldier had failed.  

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, its effects, and of the right available to him.  He acknowledged receipt of the notification, waived his right to counsel, and elected not to submit statements in his own behalf contingent on receiving a general discharge under honorable conditions.

6.  On 10 July 1989, the separation authority approved the applicant’s separation action and on 13 July 1989, the applicant was separated with a general discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time shows he held the rank of private/E-2 and had completed 3 years, 4 months, and 21 days of creditable active military service.  He had also accrued 10 days of lost time.  Item 25 (Separation Authority) shows he was separated under the provisions of paragraph 14-12b, Army Regulation 635-200.  Item 26 (Separation Code) shows he was assigned a Separation Program Designator (SPD) code of JKM and item 27 (Reentry) code shows he received an RE code of 3.  Item 28 (Narrative Reason for Separation) shows he was separated by reason of misconduct-pattern of misconduct.  



7.  The applicant provides five third-party character references that all attest to his excellent post-service conduct and work ethic.  

8.  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 version of the regulation in effect at the time of the applicant’s discharge stated the SPD code of JKM was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct).  

9.  The Department of the Army SPD/RE Code Cross Reference Table in effect at the time and the current version stipulate the RE code of 3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct (pattern of misconduct) and who are assigned an SPD code of JKM.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for a change of his assigned RE code has been carefully considered.  However, there is insufficient evidence to support this request.  

2.  The record confirms he was separated by reason of misconduct (pattern of misconduct) and he was appropriately assigned an SPD code of JKM and an RE code of 3 based on the authority and reason for separation.  Notwithstanding his excellent post-service conduct, as attested to in the third-party statements provided, absent any evidence of error or injustice in the separation process there is an insufficient evidentiary basis to support granting the requested relief.  

3.  The applicant is advised that his disqualification is waviable and if he wishes to reenter military service he should contact local recruiting personnel who are responsible for processing RE code waivers.   

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)                                         AR20110015905



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ABCMR Record of Proceedings (cont)                                         AR20110015905



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