IN THE CASE OF:	  

		BOARD DATE:	    5 June 2014

		DOCKET NUMBER:  AR20130017743 


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 upgraded.

2.  The applicant states that he broke his enlistment agreement.

3.  The applicant provides three personal character references.

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 28 July 1969 and served until he was discharged honorably on 28 July 1971 for the purpose of immediate reenlistment.  On 29 July 1971, he reenlisted in the RA for 3 years.

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

* 20 May 1972, for being absent without leave (AWOL) from 10 to 12 May 1972
* 7 February 1973, for being AWOL from 29 January to 7 February 1973 

4.  The charge sheet is not available, but on 29 June 1973 the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

5.  The applicant's unit and intermediate commanders subsequently recommended approval with the issuance of an Undesirable Discharge Certificate.

6.  The applicant’s record is void the separation authority’s approval for discharge.  However, on 15 August 1973, the applicant was issued an Undesirable Discharge Certificate.   

7.  On 15 August 1973, he was discharged accordingly.  The DD Form 214 he was issued at the time shows in:

* item 11c (Reason and Authority) the entry "AR 635-200 SPN [Separation Program Number] 246 [Discharge for Good of the Service]"
* item 13a (Character of Service) the entry "Under Conditions Other Than Honorable"
* item 15 (Reenlistment Code) the entry RE-3
* item 22a(3) (Total) he completed 3 years, 9 months, and 5 days of creditable active service
8.  On 15 November 1978, the applicant submitted a request to the Army Discharge Review Board (ADRB) asking that his discharge be upgraded.  On
8 November 1979, the ADRB carefully examined the applicant's record of service during the period of enlistment under review and determined that his discharge was proper but not equitable due to the fact counsel may have told him he would receive a general discharge and Exhibit C-4 (which is not included in his record) signed by the 18th Airborne Corps Artillery Commander also recommended a general discharge.  Accordingly, the ADRB voted to grant partial relief in the form of an upgrade of his characterization to under honorable conditions (general) and a change to the narrative reason for separation to Administrative Discharge Conduct Triable by Court-Martial.  The ADRB concluded that this corrective action did entail that 3B be added to his RE code of 3.  As a result, his original DD Form 214 was voided and he was issued an under honorable conditions discharge and a replacement DD Form 214 (Certificate of Release or Discharge from Active Duty) that was revised to show:

* item 18 (Remarks) Upgraded on 8 November 1979 following application of 15 November 1978
* item 24 (Character of Service) Under Honorable Conditions
* item 25 (Separation Authority) Army Regulation 635-200, chapter 10
* item 26 (Separation Code) JFS
* item 27 (Reenlistment Code) 3, 3B
* item 28 (Narrative Reason for Separation) Administrative Discharge Conduct Triable by Court-Martial

9.  The applicant submitted three letters attesting that his post-service character is that of a hard worker, family man, and a respectful person.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)), in effect at the time of the applicant's separation, provided 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 also stated that the SPD code of JFS was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, Administrative Discharge Conduct Triable by Court-Martial.

11.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 3 was the proper code to assign to members separated with an SPD code of JFS.  

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  
Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded because he broke his enlistment contract was carefully considered and found to lack merit.

2.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge for good of the service.  The evidence also shows the applicant was assigned the appropriate SPD code of 246 and RE code of 3 at the time of his discharge.

3.  The applicant petitioned the ADRB asking that his discharge be upgraded.  The ADRB determined his discharge was improper and voted to grant partial relief in the form of an upgrade of his characterization to general, under honorable conditions, changed the narrative reason for separation to Administrative Discharge Conduct Triable by Court-Martial, and changed his RE code to show 3 and 3B.

4.  His post-service conduct is commendable; however, it has no bearing on his conduct during his period of active duty service.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Although an administrative error may have occurred during the processing of his discharge, it did not mitigate the fact he had committed a serious offense which warranted his separation.  Therefore, he is not entitled to an upgraded 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)                                         AR20130017743





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ABCMR Record of Proceedings (cont)                                         AR20130017743



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