BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020126 


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 his reentry eligibility (RE) code be changed from a "3" to a "1."

2.  The applicant states, in effect, he needs his RE code changed to enlist in the National Guard.  He believes he will be an excellent Soldier due to his life experiences after being discharged.

3.  The applicant provides copies of an Honorable Discharge Certificate, his 2 August 2001 DD Form 214 (Certificate of Release or Discharge from Active Duty), and three letters of support.

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 served on active duty from 2 September 1999 through 2 August 2001 in the military occupational specialty 67R (AH-14 Attack Helicopter Repair).

3.  The available record contains ten Developmental Counseling Forms, dated between 24 February 2001 and 10 July 2001 for diverse infractions including – 

* being late for work
* lying to his supervisors
* failure to maintain log book
* failure to get work inspected 
* failure to complete entries in logbook
* allowing aircraft to fly in an unsafe condition
* misplacing tools
* poor duty performance 
* losing his Kevlar vest
* not properly securing his weapon
* failure to keep proper accountability of his ammunition

4.  On 10 July 2001, his unit commander initiated separation action for unsatisfactory performance.  The specific reason for the separation recommendation cited was the numerous counselings showing that the applicant's duty performance was unsatisfactory.  The counseling statements reflect that he lied to his superiors, performed substandard aviation inspections, and reflected a lack of personal integrity.

5.  On 12 July 2001, the applicant acknowledged this action and waived his administrative rights.

6.  On 17 July 2001, the separation authority approved the discharge and directed he receive a general discharge (GD).

7.  On 2 August 2001, the applicant was released from active duty in pay grade E-2.  He received a GD with a narrative reason for separation of unsatisfactory performance.  His DD Form 214 shows a separation program designator (SPD) code of LHJ and an RE code of "3."

8.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 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.

9.  The authors of the letters of support describe the applicant as a dedicated hard working individual who takes ownership of his position and believe he would be a great asset to the National Guard.

10.  Army Regulation 635-5-1 (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 of LHJ 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 included in the regulation establishes RE-3 as the proper code to assign members separated with this SPD code.  

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states an RE code is not upgraded unless it was administratively incorrect when originally issued. 

   a.  RE-1 applies to a person completing their term of active Service who is considered qualified to reenter the U.S. Army  and are qualified for enlistment if all other criteria are met.
       
   b.  RE-3 applies to a person who is not considered fully qualified for reentry or continuous Service at time of separation, but disqualification is waivable.  Ineligible unless a waiver is granted.  Individuals with an RE code of "3" can normally reenlist but require a waiver to be processed.  
       
DISCUSSION AND CONCLUSIONS:

1.  Correction of appropriate military records to show an RE code which would allow reenlistment, in effect, constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.

2.  The applicant was separated from active duty for unsatisfactory performance and has provided no evidence to show that the reason for his separation should have been anything else.

3.  There is no basis to change the RE code in the applicant's record.  



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)                                         AR20140020126



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ABCMR Record of Proceedings (cont)                                         AR20140020126



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