BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130017828 


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 an upgrade to his reentry eligibility (RE) code to RE-1.

2.  The applicant states:

* he was counseled for leaving his weapon unattended although it was on his bed, 3 feet from him
* he was unaware that he had sunflower seeds in his drawer and that they were considered contraband 
* he desires to have his RE-3 code upgraded and given another opportunity to serve his country
* comes from a military family and wants to also serve
* he has no arrest record or trouble with the law
* he was 18 years old when he enlisted and has mentally matured in the last three years

3.  The applicant provides two personal 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 17 November 2009.

3.  His record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting counseling sessions on 1 and 
8 February 2010 informing the applicant of the recommendation for administrative separation in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 11 due to his failure to adapt and patterns of misconduct based upon his:

* lying to his first sergeant
* having several items of contraband in his wall locker
* missing training due to forgetting or losing equipment
* leaving his weapon unsecured
* forgetting the basic things needed for training
* not paying attention to detail
* lack of discipline, skill, or desire to be a Soldier

4.  On 23 February 2010:

	a.  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, chapter 11, due to entry level performance and conduct.  The commander cited as the specific reason for his proposed action the applicant's failure to adapt to the military way of life.

	b.  on the same day, the applicant acknowledged receipt of the proposed 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 the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board and declined to submit statements in his own behalf.  The applicant declined to have a separation medical examination.

5.  On 24 February 2010, the separation authority approved waiver of the applicant's rehabilitative transfer and approved the discharge under the provisions of Army Regulation 635-200, chapter 11.

6.  On 5 March 2010, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 11, by reason of entry level status performance and conduct, with an entry level status discharge.  The DD Form 214 he was issued at the time confirms he held the rank of private/E-1 and had completed a total of 3 months and 19 days of active military service.  

7.  On 1 April 2011, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

8.  The applicant submitted two letters attesting to his post-service character as a respectful and thoughtful man with excellent communication skills and a great work ethic.

9.  References:

	a.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

	b.  Army Regulation 635-5 (Separation Documents), in effect at the time, 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 JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 11, by reason of "entry level performance and conduct."  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 JGA.
   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 separated under the provisions of Army Regulation 635-200, paragraph 11, entry level performance and conduct with an uncharacterized character of service and RE code of RE-3.  

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

3.  By regulation the RE code of RE-3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, paragraph 11, by reason of entry level performance and conduct.  

4.  The applicant's separation processing, to include the SPD and RE code assignments, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected physical or mental conditions.  Therefore, the RE-3 code assignment was and remains valid.  

5.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from reenlistment.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of the disqualification.  Therefore, if he desires to reenlist, the applicant should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 

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)                                         AR20130017828



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ABCMR Record of Proceedings (cont)                                         AR20130017828



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