BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130002925 


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 eligibility (RE) code of RE-3 be changed so that he may be eligible to reenter the military.

2.  The applicant states, in effect, he desires to have the RE code change so he can enlist for active duty.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 19 June 2002.  

3.  His record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting counseling sessions from 
26 September 2003 to 9 March 2004 for missing the division change of command, being absent without leave (AWOL), failing to obey lawful orders and disrespect towards a noncommissioned officer (NCO).

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 29 October 2003, for failing to go to his appointed place of duty on 
8 October 2003 
* 12 February 2004, for being AWOL from 19 December 2003 to 12 January 2004 and using disrespectful language to an NCO on 2 December 2003

5.  On 19 March 2004, he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-12b, for patterns of misconduct.

6.  On 24 March 2004:

	a.  He acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights. Subsequent to receiving this counseling, the applicant declined his rights to legal counsel and to submit a statement in his own behalf.

	b.  His company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b) for a pattern of misconduct, with a general discharge.  The commander also recommended waiver of the rehabilitative requirements.

	c.  His intermediate commander recommended approval of the discharge
action.

7.  On 30 March 2004, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed the issuance of a General, Under Honorable Conditions Discharge.



8.  On 12 April 2004, he was discharged accordingly.  The DD Form 214 he was issued at the time shows in:

* item 12c (Net Active Service this Period) he completed 1 year, 9 months,  and 2 days of creditable active service
* item item 24 (Character of Service) the entry "under honorable conditions" indicating a general discharge
* item 25 (Separation Authority) the entry "Army Regulation 635-200, paragraph 14-12b"
* item 26 (Separation Code) the entry "JKA"
* item 27 (RE Code) the entry "RE-3"
* item 28 (Narrative Reason for Separation) the entry "misconduct"

9.  On 7 November 2007, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

10.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 (Narrative Reason for Separation) will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1 (SPD Codes).

	c.  Army Regulation 635-5-1 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.  It states, in pertinent part, that the SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "patterns of misconduct."  The SPD/RE Code Cross Reference Table, dated 
31 March 2003, stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JKA.

   
   d.  Army Regulation 635-200 further states, in pertinent part, 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 (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.  Table 3-1 included a list of the RA RE codes:

		(1)  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  RE-2 is no longer used, effective 1995.

   (3)  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

   (4)  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct with a general, under honorable conditions discharge.  

2.  It appears his separation processing was accomplished in accordance with the applicable regulation.  He was recommended for separation based on his record of violation of the UCMJ, including disrespect towards an NCO, and going AWOL.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reentering military service.  An RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  If the applicant still desires to reenter the Army, he should contact a local recruiter who can best advise a former service member as to the needs of the Army at the time.




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)                                         AR20130002925





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ABCMR Record of Proceedings (cont)                                         AR20130002925



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