IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110021430 


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 his reentry (RE) code of 3 be changed to an RE-1 code.  

2.  The applicant states he would like his RE code changed so he can try out for the Seals.  He claims he was immature in his younger days and didn’t take responsibility; however, he is now mature and has beautiful children and he needs to provide them a future.  

3.  The applicant provides a self-authored statement and photograph of his children 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.  The record shows the applicant enlisted in the Regular Army on 6 March 2002, and was trained in and awarded military occupational specialty (MOS) 
11B (Infantryman).  It shows he was promoted to specialist/E-4 on 1 July 2004, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history shows on 18 October 2005, a Summary Court-Martial (SCM) convicted him of violating Article 87 of the Uniform Code of Military Justice (UCMJ) by missing movement on or about 2 September 2005.  

4.  The unit commander notified the applicant of the intent to initiate action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations), by reason of commission of a serious offense.  The commander cited the applicant’s SCM conviction for missing movement as the basis for taking the action.  The commander recommended the applicant receive a general, under honorable conditions discharge (GD).  

5.  On 7 December 2005, the applicant acknowledged receipt of the notification of separation and that he had been advised of his rights in connection with the separation action and specifically of his right to consult with counsel prior to completing his election of rights.  

6.  On 24 January 2006, the separation authority approved the applicant’s discharge under the provisions of paragraph 14-12c and directed the applicant receive a GD.  On 3 February 2006, the applicant was discharged accordingly.  

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed 3 years, 
10 months, and 3 days of creditable active military service and had accrued 
20 days of time lost due to confinement.  Item 25 (Separation Authority) contains the entry “AR 635-200 Para 14-12c.”  Item 26 (Separation Code) contains the Separation Program Designator (SPD) code “JKQ” and item 27 (Reentry Code) contains the entry “RE-3.”  

8.  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).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  
9.  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.  Both the version of the regulation in effect at the time and the current version of the regulation provide for assigning the SPD code JKQ to Soldiers separated under the provisions of paragraph 14-12c, Army Regulation 635-200 by reason of misconduct, commission of a serious offense.  The Department of the Army SPD/RE Code Cross Reference Table in effect at the time and the current version stipulate that RE code 3 is the proper code to assign members who are separated for misconduct, commission of serious offense under the provisions of Army Regulation 635-200 and who are assigned an SPD code of JKQ. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his RE-3 code be changed to RE-1 so he can try out to become a Seal has been carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The applicant's record shows his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  By regulation, the RE code assigned is based on the SPD code assigned as a result of the authority and reason for separation and RE-3 was the proper code to assign the applicant based on the authority and reason for his separation.  As a result, the RE-3 code was and remains valid.  

4.  The applicant is advised that RE code 3 indicates a waviable disqualification.  Therefore, if he desires to reenlist he should contact local recruiting officials 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)                                         AR20110021430



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ABCMR Record of Proceedings (cont)                                         AR20110021430



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