RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 28 August 2007
DOCKET NUMBER: AR20070002287
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Mr. Paul M. Smith
Chairperson
Mr. Rodney E. Barber
Member
Mr. Rowland C. Heflin
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 that his reentry (RE) code on his DD Form
214 (Certificate of Release or Discharge from Active Duty) with the ending period 23 April 1987 be changed.
2. The applicant states, in effect, that he wishes to enlist in the military and he is not able to because his DD Form 214 shows an RE-4 code. He received an
RE-3 & 4 code for testing positive on a drug test for marijuana. As a result, he was discharged from the military. Since then he has regretted his mistake and has led a productive life. He would like to put the past behind him and regain his military career.
3. The applicant provides his DD Form 214 and an undated self-authored statement.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 23 April 1987. The application submitted in this case is dated 26 January 2007.
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 applicants failure to timely file.
3. The applicant had prior service in the United States Army Reserve (USAR). He enlisted in the Regular Army (RA) on 18 April 1986 and successfully completed advanced individual training. He was awarded military occupational specialty 55B (Ammunition Specialist).
4. On 26 January 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for not being at his appointed place of duty.
5. On 23 March 1987, the applicant accepted NJP under Article 15, UCMJ for wrongfully using marijuana.
6. A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated
31 March 1987, shows the applicant was barred from reenlistment for wrongfully using marijuana. He did not desire to submit a statement on his own behalf.
7. On 7 April 1987, the applicant requested separation for failure to overcome a bar to reenlistment under the provisions of Army Regulation 635-200, paragraph 16-5b. The appropriate authority approved his request on 9 April 1987.
8. On 23 April 1987, the applicant was discharged, with an honorable discharge, in pay grade E-3 after completing 1 year and 6 days of creditable active service with no lost time.
9. The applicant's DD Form 214 with the period ending 23 April 1987 shows in item 26 (Separation Code) the entry "KGF"; item 27 (Reentry Code) erroneously shows the entry "RE-3 & 4" (it should have read RE-3); and item 28 (Narrative Reason for Separation) shows the entry "Locally imposed bar to reenlistment."
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. Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 or 4 codes as the proper reentry code to assign to Soldiers when the SPD is KGF. The Cross Reference Table further states to assign RE code 3 for local bar to reenlistment (less than 18 years active duty service).
11. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-8 of the regulation states that RE-3 code applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable and that RE-4 code applies to a Soldier not qualified for continued Army service and the disqualification is non-waivable.
Table 4-2 list non-waivable moral and administrative disqualifications and does not cite locally imposed bars to reenlistment as being non-waivable.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant received a locally-imposed bar to reenlistment 31 March 1987 for wrongfully using marijuana. His voluntary separation was processed under the provisions of Army Regulation 635-200, paragraph 16-5b because he did not anticipate being able to overcome the bar to reenlistment. Therefore, he was properly separated with a narrative reason of
Locally imposed bar to reenlistment. By regulation, since he had less than
18 years of active duty service, this mandated that he be separated from the Army with an RE-3 code.
2. The applicant's DD Form 214 with the period ending 23 April 1987 erroneously shows in item 27 "RE-3 & 4." The applicant's DD Form 214 is incorrect and should be corrected to reflect the RE-3 code.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 April 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
22 April 1990. 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:
__PMS__ __REB __ __RCH__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file. As a result, the Board recommends that item 27 of the applicant's DD Form 214 be corrected to show RE-3 code.
_____ Paul M. Smith __
CHAIRPERSON
INDEX
CASE ID
AR20070002287
SUFFIX
RECON
DATE BOARDED
28 AUGUST 2007
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
GRANT
REVIEW AUTHORITY
MR. SHATZER
ISSUES 1.
100.0300.0000
2.
3.
4.
5.
6.
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