RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070013346 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 Bar to Reenlistment be removed from his official record and that his reentry eligibility (RE) code be changed from RE-4 to a more favorable code so he can reenlist. 

2.  The applicant states, in effect, that at the time of his honorable discharge he was under great distress and was not granted leave to be with his dying great grandmother who raised him from age 10.  He would like to reenlist in the service as a Chaplain so he can minister to fellow Soldiers. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 23 March 1989.

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.  The applicant's military record shows he enlisted in the Regular Army on 12 September 1979.  He completed basic and advanced individual training and was awarded the military occupational specialty (MOS) 19K (M1 Armor Crewman).

3.  On 4 March 1988, he was assigned to Troop B, 5th Squadron, 12th Cavalry, Fort Knox, Kentucky. 

4.  On 21 February 1989, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for dereliction in the performance of his duties for failing to remain awake while on guard duty.  The punishment imposed consisted of reduction to specialist/pay grade E-4, forfeiture of $250 per month for two months, and 45 days extra duty.  The applicant appealed his punishment.  
5.  On 8 March 1989, the appropriate approval authority denied the applicant’s appeal. 

6.  On 15 March 1989, the applicant's company commander initiated a Bar to Reenlistment.  The DA Form 4126 (Bar to Reenlistment Certificate) shows the applicant had no record of a court-martial.  This form does show that he did have a record of accepting nonjudicial punishment in that he had one field grade Article 15 imposed on 8 March 1989.  The company commander indicated that the applicant had been counseled by his chain of command for not being at his appointed place of duty and for writing bad checks.  He further indicated that rehabilitative measures, to include punishment under the provisions of Article 15, UCMJ, did not have the desired effect on the applicant to motivate him to correct his behavior.  The company commander recommended that the applicant not be retained in service upon the expiration of his term of service.

7.  On 15 March 1989, the applicant indicated with his initials that he had been furnished a copy of his commander's recommendation to bar him from further reenlistment, he had been counseled and advised of the basis for the bar to reenlistment, and he stated he did not desire to submit a statement in his own behalf.

8.  On 15 March 1989, the battalion commander approved the Bar to Reenlistment Certificate.

9.  On this same date, his company commander formally counseled the applicant on his right to appeal the imposed Bar to Reenlistment.  The applicant acknowledged the approved action and elected not to appeal the Bar to Reenlistment.

10.  On 15 March 1989, the applicant requested that he be separated prior to his expiration of his term of service under the provisions of Chapter 16, Army Regulation 635-200 (Enlisted Administrative Separations).  He stated that his request for was his personal convenience and that he understood that he would not be permitted to reenlist in the future.  He also stated he did not desire a separation medical examination. 

11.  On this same date, the company commander recommended approval and the battalion commander approved the applicant's request to be separated prior to his expiration of his term of service. 


12.  On 23 March 1989, the applicant was discharged accordingly and the DD Form 214 issued shows that his characterization of service was honorable.  He authenticated this DD Form 214 in his own hand which shows in Item 25 the entry for the separation authority as paragraph 16-5b of AR 635-200.  Further, Item 26 lists his separation code as "KGF" and Item 27 shows his RE code as "4."   The same DD Form 214 shows that he had completed 9 years, 6 months, and 12 days of active federal service 

13.  Army Regulation 601-280 (Total Army Retention Program) governed bars to reenlistment at the time in question.  Essentially, this regulation provided that a Soldier could barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command may initiate a bar to reenlistment.  Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she can submit a statement on his or her own behalf.  Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority.  The regulation required that the approval authority for a Soldiers with less than 10 years' active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action).  The personal signature of the approving or disapproving authority is required.  The regulation also provided that the Soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority. 

14.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 16-5b of this regulation sets forth the requirements for early separation of enlisted personnel due to locally imposed bars to reenlistment.  Soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment may apply for immediate discharge. The service of a Soldier discharged per this paragraph will be characterized as honorable unless an entry level separation is required.  

15.  Army Regulation 635-5-1 (Separation Program Designator) prescribes the specific authorities, reasons for separating Soldiers from active duty and the Separation Program Designator (SPD) codes to be entered on the DD Form 214. This regulation states, in pertinent part, that SPD code KGF will be used for enlisted Soldiers separating under chapter 16, paragraph 16-5b, AR 635-200. 
The narrative reason cited in the Army Regulation for this specific code is "Locally Imposed Bar to Reenlistment."  The RE code "4" is used with the SPD code KGF.

16.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of Armed Forces RE codes.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) defines RE codes.  The regulation states, in pertinent part, that 
RE code "4" applies to a person separated from their last period of service with a nonwaivable disqualification and that the person is ineligible for enlistment.  This regulation also stated that that RE codes may be changed only if they are determined to be administratively incorrect

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Bar to Reenlistment should be removed from his official record and that his reentry eligibility (RE) code be upgraded so he can reenlist. 

2.  The applicant was discharged upon his personal request due to a locally imposed Bar to Reenlistment based on his record of indiscipline and acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ.  His discharge resulted in a non-waiverable disqualification which does not allow him to reenlist.  In accordance with the regulation in effect at the time of his discharge, the assignment of an RE-4 was administratively correct.  Therefore, there is no basis to remove the Bar to Reenlistment which would change the applicant’s reason for discharge and resultant RE code.  

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __RDG___  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.




____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.