IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20110022514 


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, his records be corrected to show a reentry eligibility (RE) code that will allow him to reenter the military.

2.  The applicant states, in effect, neither his DD Form 214 (Certificate of Release or Discharge from Active Duty) nor his U.S. Army Reserve (USAR) discharge orders contain an RE code.  He also states he never received any documentation related to his discharge processing.  He was discharged for missing drills and does not believe this should disqualify him from reentering the military.

3.  The applicant provides copies of his DD Form 214 and USAR discharge orders.

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 Army National Guard (ARNG) on 23 March 2006. He served on initial active duty for training from 12 April through 18 August 2006 and he was awarded military occupational specialty (MOS) 92Y, Unit Supply Specialist.  The DD Form 214 he was issued at this time shows he was transferred back to his ARNG unit and item 27 (RE code) contains the entry "NA" (not applicable).

3.  The applicant was administratively reduced to pay grade E-2, effective 18 May 2008, in accordance with Army Regulation 600-8-19, for being absent from inactive duty training. 

4.  On 18 May 2008, he was discharged from the ARNG for unsatisfactory participation and transferred to the USAR (Individual Ready Reserve).  The NGB Form 22 (Report of Separation and Record of Service) he was issued at the time shows he was given a general discharge and assigned an RE code of "3." 

5.  On 14 July 2008, he was transferred to a USAR troop program unit.
 
6.  Headquarters, 99th Regional Support Command Orders 11-028-00018, dated 28 January 2011, reduced the applicant from pay grade E-2 to pay grade E-1.  These orders also discharged the applicant from the USAR with an under other than honorable conditions (UOTHC) discharge, effective 4 February 2011.  These orders do not contain either a separation program designator (SPD) or an RE code.

7.  Other than the above discharge order, the available record does not show the applicant completed any service between 14 July 2008 and 4 February 2011 or documentation related to the reason for his discharge processing.

8.  Army Regulation 135-178 (Enlisted Administrative Separations) states a Soldier's service may be characterized as only UOTHC when a discharge is for unsatisfactory participation.  When a Soldier is to be discharged with a UOTHC characterization of service the separation authority will direct an immediate reduction to private (PV1)/E-1.  Chapter 13 states a Soldier may be discharged as an unsatisfactory participant and their service will normally be characterized as UOTHC.

9.  Army Regulation 140-111 (USAR Reenlistment Program) states reenlisting is a privilege extended only to personnel of high moral character, professional competence, and who demonstrate adaptability to the requirements of the professional Soldier's moral code.  Persons who do not maintain such standards will be barred from further service.  Nonwaivable moral and administrative disqualifications include being discharged under other than honorable conditions.
10.  Army Regulation 601-280 (Army Retention Program) states the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an RE code of 3 can normally reenlist but will probably require a waiver to be processed.  Individuals with an Army RE code of 4 are normally not eligible to reenlist in the Army, nor join another service.  Further, an RE code of 
4 is to be afforded to persons separated in pay grade E-2 and below.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states an RE code is not used for USAR or ARNG Soldiers being separated following completion of their military occupations specialty training unless the separation is for cause.

12.  Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  On 18 August 2006, the applicant was separated from active duty after completion of MOS training and as such the DD Form 214 he was issued at the time properly does not to include an RE code.  Soldiers being separated following completion of MOS training are not assigned an RE code unless the separation is for cause.

2.  The applicant had combined Reserve component service covering a period of 4 years and 10 months.  During this period he was discharged from the ARNG for unsatisfactory performance and by his own admission he was discharged from the USAR for failure to attend the required inactive duty training.  

3.  While the available record does not include the applicant's USAR separation processing documents under Army Regulation 135-178, there is sufficient evidence to presume he was discharged under the provisions of chapter 13 of this regulation.  

4.  The applicant's discharge orders from the USAR show he was reduced to pay grade E-1 and given a UOTHC discharge.  While the discharge orders do not include an RE code notation, under both Army Regulation 140-111 and Army Regulation 601-280, the applicant's UOTHC discharge in pay grade E-1 results in a non-waiverable bar to reenlistment. 

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)                                         AR20110022514



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ABCMR Record of Proceedings (cont)                                         AR20110022514



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