RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 August 2007
	DOCKET NUMBER:  AR20060017042 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Ernestine Fields

Member

Mr. Randolph J. Fleming

Member

	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, in effect, that his Reentry (RE) Code "3" be changed to RE "1" on his DD Form 214 (Certificate of Release or Discharge from Active Duty), with a separation date of 1 August 1991, in order to reenlist in the Regular Army.  

2.  The applicant states, in effect, that he served in Iraq as a Field Artillery Surveyor during Operation Desert Shield/Storm for a period of 9 months.  Upon his return, he was involved in a physical altercation with his ex-spouse and her lover.  He reacted inappropriately and was given a local bar with an RE Code of RE "3."  Prior to his discharge, he enrolled into a surgical technical program and graduated in 1992.  He was given a second chance at a military career in 1991, by the Georgia Army National Guard (GAARNG), and served as a 91W Medical Specialist, from 1999 until June 2004.  

3.  He was deployed to Iraq in support of Operation Iraqi Freedom with the GAARNG for a period of 1 year.  He joined the Army Reserve in June 2004 and is currently mobilized with the United States Army Medical Activity (USAMEDAC), Fort Polk, Louisiana, as the NCOIC of the Emergency Room.  He made a bad mistake as a young Soldier and has learned from it and has served his country honorably for the past 6 years. 

4.  The applicant provides a copy of his DD Form 214, dated 18 May 2004, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 August 1991, the date of his discharge.  The application submitted in this case is dated 27 October 2006 but was received for processing on 1 December 2006.

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 limitations 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's record shows he enlisted in the Regular Army on 20 August 1985, for 3 years.  The applicant successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 82C, Field Artillery Surveyor.  He was promoted to sergeant (SGT/E-5) effective 1 November 1988.

4.  Item 5 (Overseas Service), of his DA Form 2-1 (Personnel Qualification Record-Part II), shows the he served in Saudi Arabia from 18 October 1990 to 6 April 1991.

5.  The applicant was barred from reenlistment on 26 June 1991.  Item 10 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) of his DA Form 4126-R (Bar to Reenlistment Certificate) indicates that the applicant was receiving a bar to reenlistment for: (1) causing trouble in the civilian community on 13 March 1990; (2) failed SQT (Skill Qualification Test), July 1990;             (3) personal behavior bringing discredit upon the unit and the Army; and 
(4) domestic disturbance, May 1991.  On 3 July 1991, the applicant indicated that he would not appeal his bar.

6.  On 12 July 1991, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for assault upon his spouse, by striking her on the face with his fist, kicking her on the body with his foot, and striking her head against the wall, and did thereby intentionally inflict grievous bodily harm upon her, to wit: a broken left arm.  His punishment consisted of a reduction to E-4 (suspended), a forfeiture of pay, and 45 days extra duty.

7.  On 9 July 1991, the applicant submitted a request to be discharged prior to his ETS (expiration of term of service) under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b), due to his inability to overcome a locally imposed bar to reenlistment.  He understood that this request was for his own convenience and once separated that he would not be permitted to reenlist at a later date.  The appropriate authority approved the applicant’s request on the same day.

8.  On 1 August 1991, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b), due to a locally imposed bar to reenlistment.  He was furnished an honorable discharge.  He had completed 5 years, 11 months, and 12 days of creditable service.  

9.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "KGF."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows the entry "3" and the narrative reason for his separation is, "Local Bar to Reenlistment."

10.  The applicant requested a waiver to enlist in the GAARNG on 26 February 1999 and was approved on 1 March 1999, by the appropriate authorities.

11.  The applicant enlisted in the GAARNG on 3 March 1999, for training in military occupational specialty (MOS), 91B, Medical NCO, in pay grade E5.  He was ordered to active duty for special work (ADSW), on 9 October 2001, in support of Operation Noble Eagle.  He was released from ADSW on 26 April 2002.  He was transferred to a troop program unit (TPU). 

12.  The applicant was ordered to active duty on 2 February 2003 in support of Operation Enduring Freedom and was released from active duty on 18 May 2004.  He was transferred to a TPU.  The applicant had enlisted in the USAR on 14 June 2004 but had continued to serve until he was honorably discharged from the GAARNG on 14 July 2004.   

13.  As indicated above, the applicant enlisted in the United States Army Reserve (USAR) on 14 June 2004.  He was promoted to staff sergeant (SSG/E-6) with an effective date and date of rank (DOR) of 13 December 2004.  He was ordered to active duty effective 22 August 2005, for approximately 545 days, for the purpose of mobilization for Enduring Freedom (Other Than Homeland).  He was released from active duty on 30 December 2006.  He was transferred to a TPU where he is currently serving.

14.  The applicant was awarded several awards prior to and after his discharge from the Regular Army and while serving in the GAARNG and USAR such as:  the Army Service Ribbon; the Army Achievement Medal, 3rd Oak Leaf Cluster (OLC); the Overseas Service Ribbon; the Army Good Conduct Medal; the Noncommissioned Officers Professional Development Ribbon; the National Defense Service Medal; the Expert Marksmanship Qualification Badge, with Rifle Bar (M16); the Sharpshooter Marksmanship Qualification Badge, with Hand Grenade Bar; the Southwest Asia Service Medal, with two bronze service stars; the Global War on Terrorism Service Medal; the Armed Forces Reserve Medal, with "M" Device; the Army Lapel Button; and the Army Commendation Medal,   1st OLC. 

15.  The applicant received several superior and outstanding NCOERS (noncommissioned officer evaluation reports) before his discharge and while he was serving in the ARNG and USAR. 
16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5b applies to personnel who are denied reenlistment and provides that, if they received a locally imposed bar to reenlistment, and are unable to overcome the bar, they may apply for immediate separation.

17.  Paragraph 5-3, of the same regulation states that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  It is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Separation under this paragraph are effective if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums.  The discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary’s discretion. 

18.  Pertinent Army regulations provide that prior to discharge or release from active duty, Soldiers will be assigned reentry codes, based on their service records or the reason for discharge.  AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 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 reentry codes, including RA RE Codes.

19.  RE Code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial
punishment are also disqualified, as are persons with bars to reenlistment, and those discharged under the provisions  Army Regulation 635-200, chapter 16.

20.  RE-1 applies to persons completing their ETS who are considered qualified to reenter the Army.

21.  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 "KGF" as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as "Locally Imposed Bar to Reenlistment" and that the authority for discharge under this separation program 



designator is "Army Regulation 635-200, chapter 16, paragraph 16-5b."

22.  The SPD/RE Code Cross Reference Table, dated 2 October 1989, 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 "KGF" has a corresponding RE code of "3" or "4”.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly barred from reenlistment due to causing trouble in the civilian community on 13 March 1990, for failing his SQT, for personal behavior bringing discredit upon his unit and the Army, and for a domestic disturbance, in May 1991.  He elected not to appeal his bar.

2.  The locally imposed bar to reenlistment was imposed in compliance with 
applicable regulations with no indication of procedural errors which would tend
to jeopardize his rights.

3.  The evidence shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5b, due to a locally imposed bar to reenlistment based upon his request for discharge.  

4.  The separation code of "KGF" and RE Code of "3" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "Local Bar to Reenlistment."

5.  The applicant's separation code of "KGF" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code at the time it was applied to his honorable discharge on 1 August 1991.  There is insufficient evidence to show that an incorrect RE Code was applied to his DD Form 214.  

6.  The applicant has provided no evidence to show that the RE Code issued to him at the time of discharge, on 1 August 1991, was improper or inequitable or should be changed now.

7.  The evidence shows that the applicant was granted a waiver for enlistment in the GAARNG.  He later enlisted in the USAR where he is currently serving.  His RE Code of "RE 3" issued to him on 1 August 1991 has not prevented these subsequent enlistments.

8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 August 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 July 1994.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RJF___  __EF___  ___LDS _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.


______Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060017042
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070807
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR   USAR/TPU
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.