RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  18 November 2003
	DOCKET NUMBER:  AR2003088477

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Mark D. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his Reentry (RE) Code "4" be change to RE "2."

2.  The applicant states he made a mistake several years ago and that he should not be barred from reenlisting.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error, which occurred on 7 December 1994, the date of his discharge.  The application submitted in this case is dated 14 November 2002.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant entered active duty on 17 March 1993, for a period of 3 years with an established expiration of term of service (ETS) of 16 March 1996.  He initially served as a unit supply specialist.  

4.  The facts and circumstances pertaining to the applicant's discharge are unavailable for review.  His DD Form 214, dated 7 December 1994, shows that he was discharged under honorable conditions (general), in the rank and pay grade of PV1/E-1, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(2).  He had completed 1 year, 8 months, and 21 days of creditable service.  He was issued an RE Code of "4" and a separation program designator (SPD) Code of "JKK."

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.

6.  Pertinent Army regulations provide 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 covers eligibility criteria, 
policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of 
Armed Forces RE codes, including RA RE codes.

7.  RE–4 applies to persons not qualified for continued service by virtue of being separated from the service with non-waivable disqualifications such as persons  discharged for the good of the service in lieu of trial by court-martial.

8.  RE-2 applies to soldiers being separated before completing a contract period of service whose reenlistment is not contemplated.

9.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator (SPD) "JKK", as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is
"misconduct, commission of a serious offense, abuse of illegal drugs" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14, paragraph 14-12c(2)."

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army soldiers and Reserve Component soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JKK" has a corresponding RE code of "4" that is determined by appropriate authorities directing the change.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's RE Code of "4" is consistent with the basis for his separation and in this case finds no basis to correct the existing code.

4.  The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that his separation which resulted in his receiving an RE Code of RE "4" was in error or unjust.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 7 December 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 December 1997. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js___  ___be___  __mm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant a change in his RE Code, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		__John N. Sloan____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088477	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19941207	
DISCHARGE AUTHORITY	AR .635-300 chapt 14 paragraph 14-12c(2) 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	4	
2.		
3.		
4.		
5.		
6.