IN THE CASE OF:	  

		BOARD DATE:	    28 February 2012

		DOCKET NUMBER:  AR20110016613 


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 an upgrade of his reentry eligibility (RE) 3 code.

2.  The applicant states he wants the ability to reenter military service so he can fulfill his original enlistment term.  He had a driving under the influence (DUI) offense that was committed off-post.  There was no accident, no injury to any person or property, and no weapons or illegal drugs were involved.  The violation was committed in a civilian jurisdiction and he paid for this offense beyond the civilian status.  At the time, military policy did prohibit such acts and behaviors by enlisted Soldiers.  He made a mistake that will not happen again.  As a civilian, he has had no substance abuse problems of any sort.

3.  The applicant provides a memorandum and a DA Form 4186 (Medical Recommendation for Flying 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 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 enlisted in the Regular Army (RA) on 15 January 1991 and he held military occupational specialty 13B (Cannon Crewmember).  On 15 May 1991, he was assigned to the 6th Battalion, 8th Field Artillery, Fort Ord, CA.

3.  On 17 March 1993, he received a general officer letter of reprimand (GOMOR) for a DUI offense.  The GOMOR stated that on 31 January 1993, the California Highway Police observed him driving his vehicle in the dark without headlights and he was arrested for DUI.  At the time of the arrest he was under the legal drinking age, not wearing a seat belt, and had a .16 percent (%) blood alcohol content (BAC) when the legal limit was .10%.

4.  He was subsequently notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – commission of a serious offense.  Specifically, he cited the applicant's DUI arrest and stated he was recommending the applicant receive a general discharge.

5.  On 25 March 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights available to him.  He elected to submit a statement in his own behalf; however, no such statement is available for review.

6.  On 31 March 1993, the separation authority approved the applicant's separation action and directed the issuance of a General Discharge Certificate.  On 16 April 1993, he was discharged accordingly.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense with a general discharge.

8.  The DD Form 214 also shows in item 26 (Separation Code) the entry "JKQ" and in Item 27 (RE Code) the entry "RE-3."  He completed 2 years, 3 months, and 1 day of creditable active service.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record.

10.  Army Regulation 635-5-1 (Separation Program Designator (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.  It states that the SPD code JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense).  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKQ.

11.  Army Regulation 635-200 further states 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 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  Prior to 28 February 1995, RE-2 applied to Soldiers who were separated for the convenience of the Government in accordance with Army Regulation
635-200, chapters 5 and reenlistment was not contemplated.  They were fully qualified for enlistment/reenlistment if all other criteria were met.  On 28 February 1995 the RE-2 code was discontinued.

	c.  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 for enlistment unless a waiver is granted.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-12c, with an SPD of JKQ.  Based on this, he was appropriately assigned an RE code of "3" at the time of his discharge.  RE code "3" is the correct code for Soldiers separated by reason of misconduct - commission of a serious offense.  Therefore, he is not entitled to the requested relief.

2.  The applicant is advised that RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however it does allow for a waiver of disqualification.  Therefore, 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 may process 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)                                         AR20110016613



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ABCMR Record of Proceedings (cont)                                         AR20110016613



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