ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20180008603 APPLICANT REQUESTS: an upgrade of his reentry eligibility (RE) code from RE-4 to RE-2. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 Packet (Enlistment/Reenlistment Document Armed Forces of the United States (U.S.) * Extract of Separation Packet * Gun Control Act of 1968, Title 18, U.S. Code, Chapter 44, Section 924(e)(B) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he would like to reenlist in the U.S. Army. His actions do not altogether disqualify him from service. His offence was related to sexual assault, thereby requiring him to register on the sex offender registry in which ever state and district he resided in. In accordance with (IAW) Army Regulation (AR) 27-10 (Military Justice), section 24-4, there are guidelines of registry for military sexual offenders; thusly meaning that sex offenders are not banned from serving on active duty. Furthermore, though a felon, he is not a violent felon. IAW the Gun Control Act of 1968; which defines violent felonies as, any crime punishable by imprisonment for a term of one year, has as an element, the use, attempted use, or threatened use of physical force against the person of another. The Board should find it in the interest of justice to consider his application because the Soldiers' Creed has two lines that embodies his request, "I will never accept defeat and I will never quit." The reason for the injustice was only revealed to him today, despite his tireless efforts. 3. The applicant provides: * his DD Form 4/1 and 4/2, he reenlisted for 4 years on 9 August 2007 * orders 324-52, dated 19 November 2008, produced by Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, TX, assigning him to the personnel control facility on 25 November 2008 * his DA Form 4187 (Personnel Action), dated 11 December 2008, present for duty (PDY) to confined by military authorities on 17 November 2008 * his DA Form 4187, dated 11 December 2008, confined to PDY on 29 May 2009 * pre-separation counseling checklist for active component service members * orders 231-1308, dated 19 August 2010, produced by U.S. Installation Management Command, Headquarters, U.S. Army Garrison, Fort Sill, OK, assigning him to the U.S. Army transition point for transition processing on 20 August 2010 * gun control act of 1968, Title 18, U.S. Code, Chapter 44, Section 924(e) (B), was not included in the packet 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 20 July 2005. b. On 17 November 2008, he was convicted of engaging in sexual contact, by placing his hand around and playing with Private First Class CLV's penis and his genitals while he was substantially incapacitated on or about 9 February 2008. The court sentenced him to be discharged from military service with a bad conduct discharge, nine months confinement, and reduction to private/E-1. c. The convening authority approved a bad conduct discharge, eight months confinement, and reduction to private/E-1. d. His special court martial order number 58, dated 27 May 2010, shows his confinement has been served, the appellate review was completed and the sentence had been affirmed, and the bad conduct discharge would be executed. . e. On 20 August 2010, he was discharged from the RA. He completed 5 years, 1 month, and 1 day of active service. His DD Form 214 shows in: * Item 23 (Type of Separation) – Discharge * Item 24 (Character of Service) – Bad Conduct * Item 25 (Separation Authority) – Army Regulation 635-200, chapter 3 * Item 26 (Separation Code) – JJD * Item 27 (Reentry Code) – 4 * Item 28 (Narrative Reason for Separation) – Court Martial, Other 5. By regulation AR 635-5 (Separation Documents), the DD Form 214 will be annotated for item 27 (Reenlistment Code) IAW AR 601–210 (Regular Army and Army Reserve Enlistment Program). Soldiers separating under chapter 3 of AR 635-200 due to court-martial conviction are assigned separation code JJD. The RE code associated with this type of discharge is RE-4. The Army does not use RE-2. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determind that relief was not warranted. Based upon the misconduct which resulted in the applicanat’s separation, the Board concluded that the RE code currently reflected on the applicant’s DD Form 214 was appropriate. The Board also wanted to inform the applicant that RE Code 2 no longer is used. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. Block 27 (Reenlistment (RE) Code), for the RE Code, AR 601–210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army and U.S. Army Reserves reentry eligibility and provides regulatory guidance on the RE codes. 3. AR 601-210 (Regular Army (RA) and Reserve Components Enlistment Program) in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States (U.S.) Army Reserve. Table 3-1 lists the RA RE eligibility codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-2 is no longer used, effective 1995. c. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted. d. RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification. 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and the corresponding RE code. The cross reference table in effect at the time of his discharge states that separation code JJD has a corresponding RE code of "4." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008603 4 1