IN THE CASE OF:	   

		BOARD DATE:	  1 October 2014

		DOCKET NUMBER:  AR20140002291 


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 the reentry eligibility (RE) code on her 
DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from a 3 to a 1.

2.  The applicant states she:

* believes that the reason for her separation did not require an RE code-3 
* failed an examination during advanced individual training and was required to select another military occupational specialty (MOS)
* chose MOS 42A (Human Resources Specialist), was told there were no slots available, and that she had no other option but to be discharged
* was told that her First Sergeant rejected her offer to accept another MOS
* feels she was not given a fair chance
* enlisted for a reason and it was not to be sent home after 6 months
* was successful in the area of physical fitness testing, was respected and followed orders, learned every value and lived them
* took pride in what she did and desires to have an opportunity to complete her experience

3.  The applicant provides her 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 (RA) on 10 July 2012, for MOS 25M (Multimedia Illustrator).

3.  Her record reveals a disciplinary history that includes several DA Forms 4856 (General Counseling Form) documenting counseling sessions from 9 October to
20 November 2012, informing the applicant of the recommendation for administrative separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 11 (i.e., chapter 13) due to her unsatisfactory performance based on her:

* not completing homework assignments
* academic average being below standards
* being placed on academic probation
* failing the course examination twice

She was also counseled on the unavailability of MOS 42A.

4.  Her record contains a Record of Student Action, dated 25 October 2012, which shows she was recommended for academic elimination due to her being unable to maintain course standards.  She concurred with this recommendation.

5.  On an unknown date, the applicant's commander informed her that he was initiating action to discharge her from the service under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  The commander cited as the specific reason for her proposed action the applicant's academic elimination from the 25M course and declined reclassification.

6.  On 13 December 2012, the applicant acknowledged receipt of the proposed action against her and consulted with legal counsel.  She was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.  Subsequent to receiving this counseling, the applicant completed her election of rights by waiving her right to submit statements in her own behalf, but did request to consult with counsel and to representation by military counsel and/or civilian counsel at no expense to the government.  

7.  The separation authority approved the applicant's discharge action and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 13, with a general discharge.

8.  On 21 December 2012, she was discharged accordingly.  The DD Form 214 she was issued shows in:

* Block 24 (Character of Service) honorable 
* Block 25 (Separation Authority) Army Regulation 635-200, chapter 13
* Block 26 (Separation Code) JHJ
* Block 27 (Reentry Code) 3
* Block 28 (Narrative Reason for Separation) "Unsatisfactory Performance" 

9.  References:

	a.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

	b.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 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 JHJ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13, by reason of "unsatisfactory performance."  The SPD/RE code Cross Reference Table, dated 15 June 2006, states an RE-3 code will be assigned to members separated under these provisions with an SPD code of JHJ.

   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-ep4 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, chapter 13, unsatisfactory performance and conduct, and her DD form 214 shows she has an honorable character of service and RE code of 3.  It is noted that the approval authority had directed she be given a general discharge, and she was separated not just for failing an examination but for not completing homework assignments.

2.  By regulation the RE code of 3 is the proper code to assign members separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  

3.  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 code 3 assignment was and remains valid.  

4.  The applicant is advised that although her RE code has not been upgraded, this does not mean that she is disqualified from reenlistment.  RE code 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 she desires to reenlist, the applicant should contact a local recruiter to determine her 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)                                         AR20140002291





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ABCMR Record of Proceedings (cont)                                         AR20140002291



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