IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20120000378 


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 reentry eligibility (RE) code be changed from RE-3 to RE-1.

2.  The applicant states he believes there was an injustice in his case because he served his first tour under totally honorable conditions and made rank within the quickest amount of time allowed before he reenlisted.  He further states he reacted to the behavior of another Soldier in a nonprofessional manner and he understands he did not handle the situation correctly, but believes he was treated incorrectly by the company commander.  He further states he was very young at the time and he realizes he made a bigger mistake by opting to get out of the Army and he now desires to join the National Guard.

3.  The applicant provides no additional evidence.

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 on 8 January 1987 for a period of 3 years and training as an indirect fire infantryman.  He completed one-station unit training at Fort Benning, Georgia, and was transferred to Fort Lewis, Washington, for his first duty assignment.  He was advanced to pay grade E-4 on 1 June 1988.

3.  On 31 May 1989, he reenlisted for a period of 4 years and training as a finance specialist.

4.  On 14 August 1989, nonjudicial punishment was imposed against him for assaulting a senior noncommissioned officer and failing to go to his place of duty.

5.  On 21 August 1989, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12b, due to patterns of misconduct.  He cited the applicant's Army Physical Fitness Test failures, repeated failure to repair, poor appearance, failure to respond to repeated counseling, and disobedience of orders as the basis for his recommendation.  He also provided counseling statements in which the applicant stated that if it took a bad conduct discharge to get out, then he would take it.

6.  After consulting with defense counsel, the applicant waived all of his rights and declined the opportunity to submit a statement in his own behalf.

7.  The appropriate authority approved the recommendation for discharge on 6 September 1989 and directed issuance of a General Discharge Certificate.

8.  Accordingly, he was discharged under honorable conditions on 15 September 1989 under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – pattern of misconduct.  He completed 2 years, 8 months, and 8 days of active service and was serving in pay grade E-2 at the time of his discharge.  He was issued a separation code of "JKM" which indicates his separation was due to misconduct.  He was issued an RE code of RE-3/RE-3C.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides guidance for the issuance of RE codes upon separation from active duty.  It states these codes are not to be considered derogatory in nature; they are simply codes used for identification of an enlistment processing procedure.

10.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  Personnel separated with a separation code of "JKM" will be assigned an RE code of 3 at the time of separation.

11.  Army Regulation 601-280 (Army Retention Program) serves as the authority for reenlistments and establishes retention control points.  It provides that Soldiers in pay grades E-1 through E-3 at the end of their enlistments are not authorized to reenlist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The applicant's contentions have been noted; however, his DD Form 214 appears to correctly reflect that he was discharged due to misconduct and he failed to show through the evidence submitted with his application and the evidence of record that he was not properly discharged or that he was issued an improper separation and RE code.

3.  It is also noted that while his RE code was issued based on his separation code, which is indicative of the reason for his separation, he would also have received an RE code of 3 based on his pay grade at the time of his discharge.

4.  Accordingly, there appears to be no basis to grant his request for a change of his RE code.  However, he is not precluded from applying for a waiver at his local recruiting office if he can show he has overcome the basis for his separation.

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 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)                                         AR20120000378



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ABCMR Record of Proceedings (cont)                                         AR20120000378



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