IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150006915 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing his reentry (RE) code from RE-3 to RE-1 and by changing his Separation Program Designator (SPD) code. 2. The applicant states his RE-3 needs to be changed to RE-1 and SPD code JGA, which represents he was pregnant also needs to be changed. According to his Army recruiter, he technically is not considered to have been in the service or even a Soldier if he served for less than 6 months. He was at Fort Benning for only 5 months and 15 days. His captain and drill sergeants at the time informed him that he could reenlist after 6 months if he still wanted to be in the Army. He made a mistake of lying to his drill sergeants about having a cell phone while in basic training. He was also selling some of his flavored cough drops to battle buddies who wanted to buy them. It was unacceptable for him to lie to his drill sergeants about the phone he had been letting his battle buddies use to contact their family because they were homesick or had personal issues. He understands that none of these reasons made his actions alright. The DD Form 214 he received has the wrong SPD code and wrong RE code. It shows an RE-3 code indicating a medical discharge and an SPD code JGA indicating he was pregnant. He has been trying for over 2 years to get his DD Form 214 corrected. He is determined to serve his country and to be in the Army and actually do something successful, important and meaningful; but most importantly, what he always wanted to do with his life was to be in the Army. He even tried to reenlist in the Reserve. About 3 years ago he sat down with a female captain who signed off on a waiver for him to join. Even though he made a mistake and learned from it, the waiver was denied. He has called the Department of Veterans Affairs (VA) to talk with the eligibility department to find a way to get his RE-3 changed to an RE-1 so he can enlist again in the Army. He has been talking to an Army recruiter who told him that he needed to have more determination and ambition to get his DD Form 214 changed to show an RE-1. He needed to receive a DD Form 215 showing the change. He has been trying to rejoin the Army by applying to the Reserve which did not happen because of the incorrect codes on his DD Form 214. His drill sergeant once told him that no new recruit, new Soldier, veteran or life long career Soldier can rise to be the best they can be until they have fallen and made mistakes. He is only asking that his RE-3 be changed to RE-1 so he can rejoin the Army to be the best Soldier he knows he can be. He wants to be a career Army Soldier. 3. The applicant provides no additional documentation. 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. On 19 January 2010, the applicant enlisted in the Regular Army. He was subsequently assigned to Fort Benning, Georgia, for one station unit training (OSUT). 3. On 3 June 2010, the applicant accepted nonjudicial punishment for failure to obey a lawful order by possessing, buying, selling, or using contraband (cell phone and cough drops) without permission while in OSUT. 4. On 8 June 2010, the applicant's commander informed him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 11 for entry level performance and conduct. He stated his reason for this action was the applicant’s demonstrated character and behavior was not compatible with satisfactory continued service. He could not adapt to military life. 5. On 8 June 2010, the applicant acknowledged the commander's action. The applicant declined the opportunity to consult with counsel. He elected to not submit a statement on his own behalf, and waived consulting counsel and representation. 6. On 8 June 2010, the applicant’s commander submitted his recommendation as discussed above. 7. On 9 June 2010, a sergeant first class stated that the applicant had been under a lot of stress due to issues back home which had caused him to make poor decisions. These poor decisions included selling cough drops to other Soldiers of the platoon for five to ten dollars a bag. He was also selling minutes on phone cards and also had a cell phone that he was not authorized to have. It was in his best interest to be separated from the Army and to return once he was able to focus on the mission at hand. 8. On 11 June 2010, the appropriate authority approved the recommendation and directed that he be discharged in an entry level status and his service be shown as uncharacterized. 9. Accordingly, he was discharged on 22 June 2010. His service was uncharacterized. He had completed a total of 5 months and 4 days of creditable active duty service. His DD Form 214 indicates: a. he did not complete any military training and was not awarded a military occupational specialty; b. he was given an SPD code of JGA; c. he was discharged under the provisions of Army Regulation 635-200, chapter 11 due to entry level performance and conduct; and d. he received an RE-3. 10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 applied to Soldiers in an entry level status whose separation may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by: * could not adapt socially or emotionally to military life * lacked the aptitude, ability, motivations or self-discipline for military service * failure to adapt to the military environment * minor disciplinary infractions and have demonstrated character and behavior characteristics not compatible with satisfactory continued service 11. Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days. It further states the character of service for members separated under the provisions of chapter 11 will be uncharacterized. 12. Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes. RE-3 applies to persons separated from their last period of service with a waivable disqualification. 13. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The SPD code of JGA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 11 due to entry level performance and conduct. Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE code to assign to Soldiers for this reason. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his DD Form 214 should be corrected by changing his RE-3 to RE-1 and by changing his SPD code because the one he now has indicates pregnancy. 2. The SPD code JGA, indicating the reason for his discharge was due to his entry level performance and conduct, and the RE-3 were both correctly entered on his separation document in accordance with governing regulations. There is no evidence of error or injustice. The applicant’s contention that this SPD code indicates pregnancy is unfounded. 3. There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for the RE-3. While the applicant's desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE code for this purpose. 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) AR20150006915 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006915 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1