IN THE CASE OF:    

		BOARD DATE:  16 June 2015	  

		DOCKET NUMBER:  AR20140019187


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, a change in his characterization of service, reason for separation, and reentry (RE) code.   

2.  The applicant states, in effect, that he believes "it" says he was pregnant and he would like to get this changed so he may reenlist into the armed services.  

3.  The applicant provides a copy of his 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 on 16 November 2009.  He was assigned to Fort Benning, GA, for the purpose of completing his military training; however, he did not complete his training.   

3.  His record reveals he was formally counseled by members of his chain of command on 11 separate occasions between 14 December 2009 and 6 April 2010, for his inability to pass the Army Physical Fitness Test (APFT).  He was also counseled that if he continued to have unsatisfactory performance he could be administratively separated from the service.  He concurred on each occasion with his initials and signed and dated the forms on the same dates as the counseling took place. 

4.  His record also shows he twice accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ):

* on 1 February 2010, for dereliction of his duties on or about 25 January 2010; specifically, for failing to properly clear his weapon, resulting in an accidental discharge
* on 14 April 2010, for willfully disobeying a lawful order from a noncommissioned officer on or about 3 April 2010; specifically, to remain in the battalion area to perform duty, an order which it was his duty to obey

5.  On 15 April 2010, 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 (Personnel Separations – Enlisted Personnel), chapter 11, due to entry level performance and conduct.  The commander cited, as the specific reason for his proposed action, the applicant's repeatedly inability to pass the APFT and his inability to physically complete basic training at the time.  He was advised of his rights.  

6.  On this same date, the applicant acknowledged receipt of the separation notification.  He stated he understood that, if approved, he would receive an uncharacterized entry level separation.  He further elected not to consult with counsel, understood that Veteran Administration and other benefits could/would be affected, and elected not to make any statements in his own behalf.  He also did not request a separation physical.  

7.  His commander subsequently recommended his separation from the service.  The separation authority waived further rehabilitative efforts and directed that he be discharged with an entry level separation and a characterization of service as uncharacterized.  

8.  He was discharged accordingly on 29 April 2010.  He completed 5 months and 14 days of net active service.  The DD Form 214 he was issued at the time shows in:

* Block 23 (Type of Separation) – Discharge
* Block 24 (Character of Service) – Uncharacterized
* Block 25 (Separation Authority) – Army Regulation 635-200, chapter 11
* Block 26 (Separation Code) – JGA 
* Item 27 (Reentry Code) – 3 
* Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states in:

	a.  Chapter 3, a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated (emphasis added).

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

	d.  Chapter 11 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an ELS.  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  A general discharge is not authorized under ELS conditions and an honorable discharge is rarely ever granted.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides 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.  It also states that RE codes may be changed only if they are determined to be administratively incorrect.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  

   a.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	b.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of "JGA," as shown on his DD Form 214, is appropriate for involuntary separation when the narrative reason for discharge is entry level performance and conduct and the authority for discharge is Army Regulation 635-200, chapter 11.

13.  The U.S. Army Human Resources Command (HRC) publishes a cross-reference list of SPD and RE codes.  The cross-reference list in effect at the time showed that an SPD code of "JGA" was assigned an RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change in his characterization of service, reason for separation, and RE code was carefully considered.  

2.  The available evidence shows he was separated for entry level performance and conduct, based on his inability to pass the APFT, prior to the completion of 180 days of active service.  Based on the authority and reason for separation, he was properly assigned an uncharacterized characterization of service, an SPD code of "JGA," and a corresponding RE code of "3" in accordance with applicable regulations.  Therefore, his records are correct as currently constituted.

3.  Without evidence that shows an error exists on his DD Form 214 or that his discharge was in error or unjust, there is no basis to change his character of service, reason for separation, or RE code as requested.

4.  For the applicant's information, an uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.   

5.  The applicant is advised that although no change is being recommended regarding his discharge, this does not mean that he is permanently disqualified from reentering military service as he wishes.  A reentry code (RE-3) applies to persons who are not considered fully qualified for reentry or continuous service; however, it does allow for a waiver of disqualification.  Therefore, if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  

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)                                         AR20090009508



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ABCMR Record of Proceedings (cont)                                         AR20140019187



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