IN THE CASE OF:	   

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019974 


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 his Reentry (RE) Code be changed from a “3” to a “1.”

2.  The applicant states, in effect, that he had an RE Code of “3” for misconduct when he was discharged from active duty in 2004; however, that was waived when he enlisted in the U.S. Army Reserve (USAR) under the Try 
1 Year Program in 2007; he was honorably discharged from the program.  Accordingly, he desires to have his RE Code changed to a “1” so that he can again enlist.

3.  The applicant provides a memorandum from the command career counselor; a copy of his discharge orders from the USAR, dated 17 November 2008; and a copy of his USAR enlistment contract indicating that waivers were granted for his enlistment in the USAR.

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 19 August 1996.  He completed his training and remained on active duty through continuous reenlistments.

3.  On 17 March 2004, his commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct due to minor disciplinary infractions.  He cited as the basis for his recommendation the applicant’s conviction by a summary court-martial for being absent without leave (AWOL from 9 August to   2 September 2001, repeated incidents of failure to go to his place of duty, disobeying orders and failure to respond to repeated counseling sessions.

4.  After consulting with counsel the applicant waived his rights and elected not to submit a statement in his own behalf.

5.  On 30 April 2004, the appropriate authority approved the recommendation for discharge and directed that he be discharged under honorable conditions.

6.  Accordingly, he was discharged under honorable conditions on 24 May 2004 under the provisions of Army Regulation 635-200, paragraph 14-12a, due to misconduct.  He had served 7 years, 9 months, and 6 days of active service.  He was assigned a separation program designator code of “JKN” and an RE code of “3.”

7.  On 16 October 2007, he enlisted in the USAR with a waiver for a period of 
1 year and served until he was honorably discharged on 17 November 2008.

8.  On 5 September 2008, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and indicated that he was serving in the USAR and desired to re-enter active duty.  After reviewing the available evidence in his case the ADRB determined that the applicant’s discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 5 June 2009.

9.  Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment processing into the RA and the 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.
10.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.
 
2.  The applicant was separated under the provisions of Army Regulation        635-200, chapter 14; therefore, he was properly assigned an RE code of RE-3 in accordance with the applicable regulations.

3.  The applicant has failed to show through the evidence submitted or the evidence of record that he was assigned the wrong RE code at the time of his separation or that there is an error or injustice in his case.  Although he is not precluded from applying for a waiver of his RE code at a nearby recruiting office if he is otherwise qualified and the needs of the Army at the time justify his return to service, there is no basis for the Board to change his RE code. 

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)                                         AR20120019974



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ABCMR Record of Proceedings (cont)                                         AR20120019974



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