IN THE CASE OF:	   

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140013710 


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 correction of his reentry eligibility (RE) code on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) from RE-3 to a more favorable code so that he may reenter the military.

2.  The applicant states during training he injured his lower back and was unable to extend his back and/or carry a rucksack with more than 25 pounds without severe pain.  His commander at the time stated that he could be medically boarded but he (the applicant) did not want to be medically boarded, or reclassified.  He went in with an 18x contract.  He had two bachelor degrees at the time of enlistment.  His commander stated that he thought his best option was an entry level separation, finish graduate school (he is now a Doctor of Chiropractic), continue physical training, and then come back as an officer.  He was discharged on 25 August 2010.  He went back to graduate school in September 2010 and graduated from graduate school with his Doctorate in December 2013.  He now wants to come back into the military as an officer, exactly how his commander stated he should.  However, his RE-3 means he needs a waiver.  He is 31 years of age and already needs an age waiver.  If his RE Code was a 1, it would almost guarantee an acceptance.  His physical fitness score is 300, so his age is not a factor.  He also has Department of Veterans Affairs (VA) paperwork stating that he has a "service-related disability" due to the training injury.  His VA medical was at Kansas City, MO VA Hospital.  His discharge was not due to a lack of commitment, or loyalty or desire.  He is here to finish what he began and fulfill his oath to serve in the U.S. military.  Having the RE Code changed from a 3 to a 1 would make this possible. 

3.  The applicant provides his VA letter and related examination.  

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’s record shows he enlisted in the Regular Army for 5 years on 24 June 2010.  He was assigned to the 2nd Battalion, 54th Infantry Regiment, Fort Benning, GA for training. 

3.  On 11 July 2010, he was counseled by his drill sergeant.  He stated that he wanted to quit and after the drill sergeant talked to him, he refused to train.  

4.  On 12 July 2010, he was again counseled by the drill sergeant for his refusal to train and the consequences of his decision. 

5.  On 20 July 2010, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 11, by reason of entry level performance and conduct.  The specific reasons for the proposed action were the applicant's inability to meet the minimum standards prescribed for successful completion of training to because of lack of aptitude, ability, motivation, and self-discipline.  He had demonstrated behavior characteristics that were not compatible with satisfactory continued service and failed to respond to counseling.  The immediate commander recommended an entry level separation.

6.  On 21 July 2010, the applicant acknowledged receipt of the separation notification action.  He was offered the opportunity to consult with counsel but he declined.  His commander advised him of the basis for the contemplated action to separate him and its effects, of the rights available to him, and of the effect of any action taken by him in waiving his rights.  He elected not to make a statement or submit a rebuttal in his own behalf.
7.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 11.  He again stated the reasons for the proposed action were the applicant's inability to meet the minimum standards prescribed for successful completion of training to because of lack of aptitude, ability, motivation, and self-discipline.  

8.  On 21 July 2010, the separation authority approved the applicant's discharge from the Army in accordance with Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  Accordingly, the applicant was discharged on 5 August 2010.

9.  The DD Form 214 he was issued confirms he was discharged in accordance with Army Regulation 635-200, chapter 11, with service uncharacterized.  This form also shows he completed 1 month and 12 days of creditable active service. Additionally, this form shows in:

* Item 26 (Separation Code), the entry "JGA"
* Item 27 (Reentry Code), the entry "3"

10.  He provides a VA letter, together with associated medical documents, stating he is entitled to service-connected disability. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry level status.  This provision of regulation applied to individuals who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty.  It further applied to individuals who had demonstrated they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self-discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes:

	a.  An 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.

	b.  An 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 for enlistment unless a waiver is granted

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) 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 that the SPD code JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JGA.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was unable to meet the minimum standards prescribed for successful completion of training to because of lack of aptitude, ability, motivation, and self-discipline.  He had demonstrated behavior characteristics that were not compatible with satisfactory continued service and failed to respond to counseling.  Accordingly, his chain of command initiated separation action against him.

2.  His separation and RE codes were assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 11, due to his entry level performance and conduct.  The underlying reason for his discharge was his entry level performance and conduct.  The only valid narrative reason for separation permitted under that paragraph is "Entry Level Performance and Conduct."  The appropriate separation code associated with this type of discharge is "JGA" and the corresponding RE code associated with this discharge is RE-3, both of which are correctly shown on his DD Form 214.  There is neither an error nor an injustice.

3.  The ABCMR does not establish eligibility for entry into the Army nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  An RE-3 code applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. 

4.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise his on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing requests for enlistment waivers.

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)                                         AR20140013710





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ABCMR Record of Proceedings (cont)                                         AR20140013710



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