IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110017574


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, in effect, that her separation program designator (SPD) code of "JGA" and her reentry eligibility (RE) code of 3 be changed to more favorable codes so that she may reenter the military.

2.  The applicant states, in effect, that:

	a.  While she was in basic training she found out her mother was very sick and had started using drugs.  The applicant was age 18 and the oldest of three sisters.  Her younger sisters had no one other than the applicant to help them. 

	b.  She went to her drill sergeant about the situation and was informed that if she failed her Army Physical Fitness Test (APFT) three times she would be discharged and could come back in 6 months.  So she failed the run three times and left the Army.  

	c.  She went home and arranged for her mother to enter a rehabilitation clinic and she also took responsibility for her younger sisters.  Her mother has since passed away.  

	d.  She believes her reentry code is unjust because she went to her drill sergeant and was told she could take the action she did to leave the Army.  She was a private with a lot going on in her life and did not have any help in understanding what kind of discharge she was receiving.  She believed that she would be able to return to the Army in 6 months if she could pass the APFT.  Her sisters are now grown and she would like to return to the military.
3.  The applicant did not provide any additional documentation.

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 21 October 2003.  She did not complete training and was not awarded a military occupational specialty.

3.  The applicant's immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 11, for entry level performance and conduct.  The specific reason for the proposed action was repeated failure of the APFT.

4.  On 23 February 2004, the applicant acknowledged receipt of the separation notification action and waived consultation with counsel.   

5.  She also acknowledged that she understood if her discharge was approved, she would receive an entry level separation with uncharacterized service.  She further acknowledged that she understood the Department of Veterans Affairs and other benefits normally associated with completion of active service would be affected.  She also acknowledged that she understood she would be ineligible to apply for enlistment for a period of two years after discharge.  She elected not to make a statement or submit a rebuttal in her own behalf.

6.  On 3 March 2004, the separation authority approved the applicant's discharge from the Army in accordance with Army Regulation 635-200, chapter 11, due to entry level performance and conduct.  She was discharged on 9 March 2004, and assigned an SPD code of "JGA" and an RE code of "3."

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status (individuals who had completed no more than 180 days of continuous active duty before separation was initiated).  The regulation required an uncharacterized description of service for separation under this chapter.

8.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes including RA RE codes.  RE-3 applies to persons separated with a waivable disqualification.  

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities 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 "JGA" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 11.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of "JGA."

DISCUSSION AND CONCLUSIONS:

1.  The applicant did not provide any evidence to support her contention that her drill sergeant told her that she could be discharged if she failed the APFT three times and return to the Army in 6 months if she could pass the test.  In addition, when she signed her notification of separation action she acknowledged that she understood she would be ineligible to apply for enlistment for a period of two years after discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  She waived consultation with counsel.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case and an RE code of 3 was correctly entered on her DD Form 214.

4.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code of 3.  The applicant’s description of the events and her desire to continue in the service to her country are noted; however, there are no provisions authorizing the change of an RE code for this purpose.

5.  The ABCMR does not establish eligibility for entry into the Army nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if she desires to reenter military she should contact a local recruiter who can best advise her of the requirements for returning to military service and of the needs of the military at this time.  They are also responsible for processing enlistment waivers.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110025102



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ABCMR Record of Proceedings (cont)                                         AR20110017574



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