IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140015689 


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 and rank at separation.

2.  The applicant states, in effect:

* the RE code was assigned in error
* his character of service is not indicative of the assigned RE code
* he was discharged in the incorrect rank
* the administrative personnel at Fort Knox, KY, handled his case incorrectly

3.  The applicant provides no additional evidence.

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.  Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Amy on 31 October 2005 for 3 years and 16 weeks in pay grade E-4.  He completed his training and was awarded military occupational specialty 11B (infantryman).

3.  On 5 October 2010, he was convicted by a general court-martial of being absent without leave (AWOL) from 18 August 2008 to 23 September 2009 with intent to avoid hazardous duty or shirk important service (Operation Iraqi Freedom).  His sentence included confinement for 179 days and reduction to the rank/pay grade of private (PV2)/E-2.  On 22 December 2010, the convening authority approved the sentence.

4.  On 27 February 2011, he was released from confinement and restored to duty.  A memorandum pertaining to his duty status, dated 3 March 2011, shows his rank as PV2/E-2.

5.  On 9 March 2011, he was honorably discharged for completion of required active service.

6.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank) – PV1 (private/E-1)
* item 4b (Pay Grade) – E01
* item 12i (Effective Date of Pay Grade) – 19 October 2010
* item 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4
* item 26 (Separation Code) – JBK
* item 27 (Reentry Code) – 3
* item 28 (Narrative Reason for Separation) – Completion of Required Active Service

7.  There is no evidence in the available records showing his rank was reduced to E-1 after his general court-martial conviction.

8.  Chapter 4 of Army Regulation 635-200 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 provides a list of RE codes.

	a.  RE code 1 applies to persons completing an initial term of active service who were fully qualified when last separated.

	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.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JBK applies to Soldiers discharged for completion of required active service and the regulatory authority is Army Regulation 635-200, chapter 4.

11.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD of JBK will be assigned an RE code of 3.  This table states that when the Soldier's record indicates (for current enlistment) he or she had lost time due to being AWOL or confinement enter an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 4.  The RE code associated with this type of discharge is 3.

2.  His RE code was administratively correct and in conformance with applicable regulations at the time of his discharge.  Therefore, there is no basis for granting the applicant's requested relief to change his RE code.

3.  His current RE code is a waivable code.  The applicant may still apply for service in the Armed Forces and request the appropriate waiver.

4.  The evidence of record supports the applicant's contention that his rank is incorrect on his DD Form 214.  The evidence shows he was reduced in rank from E-4 to E-2 effective 22 December 2010.  Since there is no evidence showing his rank was later reduced to E-1 prior to his discharge on 9 March 2011, it would be appropriate to correct items 4a, 4b, and 12i of his DD Form 214 to show his rank as PV2, his pay grade as E-2, and his effective date of pay grade as 22 December 2010.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the current entry in item 4a of his DD Form 214 and replacing it with the entry "PV2"; 

	b.  deleting the current entry in item 4b of his DD Form 214 and replacing it with the entry "E-2"; and

	c.  deleting the current entry in item 12i of his DD Form 214 and replacing it with the entry "2010  12  22."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE code.



      ______________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)                                         AR20140015689



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ABCMR Record of Proceedings (cont)                                         AR20140015689



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