RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018366 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 4 be changed so that he may enlist in the Army. 

2.  The applicant states, in effect, that an Army recruiter informed him that his 
RE code 4 was incorrect.  A discharge based on a locally imposed bar to reenlistment with a separation code of KGF is to receive an RE code 3. 

3.  The applicant provides copies of his DD Form 214, an extract of Army Regulation 635-200, and a copy of this Board’s Record of Proceedings, AR20050008190, dated 4 April 2006.

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 1984, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  In January 1987, he was released from active duty and transferred to the United States Army Reserve.

3.  On 19 August 1987, the applicant enlisted in the Regular Army for 4 years.  He completed advanced individual training and was awarded MOS 13M1O (Multiple Launch Rocket System (MLRS) Crewmember).

4.  On 5 November 1987, the applicant was assigned for duty as an MLRS crewman at Fort Riley, Kansas.

5.  During the period from 18 December 1987 to 18 February 1988, the applicant received performance counseling on four occasions for being late for duty, for being disrespectful and belligerent, and for having a poor attitude.
6.  On 18 February 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty.  The punishment included 14 days extra duty.

7.  During the month of March, 1988, the applicant received performance counseling on five occasions for his lack of motivation, for being late for duty, for disrespect, for poor attitude and lack of initiative, and for insubordination. 

8.  On 5 July 1988, the applicant’s commander recommended that he be barred to reenlistment.  The commander cited the numerous counseling sessions and NJP as a basis for this action.  The commander stated that the applicant had not adjusted to the Army after returning to the service following a short period of time as a civilian.  He suffered from a recurring attitude problem.  The applicant worked for a number of different noncommissioned officers and they all had the same problems with him.  On 15 July 1988, the appropriate authority approved the bar to reenlistment.

9.  On 20 July 1988, the applicant requested that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 16-5b, due to his locally imposed bar to reenlistment.  On 3 August 1988, the appropriate authority approved the applicant’s request.

10.  On 12 August 1988, the applicant was discharged under the provisions of Army regulation 635-200, paragraph 16-5b due to a locally imposed bar to reenlistment.  He was given a Separation Program Designator (SPD) Code of KGF and an RE Code of 4.  His character of service was honorable.  He had attained the rank of specialist, pay grade E-4, and had completed 11 months and 22 days of creditable active duty service during this period.

11.  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 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

12.  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 KGF 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 AR 635-200, paragraph 16-5b, due to locally imposed bar to reenlistment.  The SPD/RE Code Cross Reference Table in effect at the time provided for assignment of either RE-4 or RE-3 for members separated with this SPD code.  It explained, in pertinent part, that members separated under this provision who had a local bar to reenlistment with less than 18 years of service would be assigned the RE-3 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his RE-4 code assignment was improper was carefully considered and found to have merit.  By regulation, members separated under the provisions of Army Regulation 635-200, paragraph 16-5b, with an SPD code of KGF, based on a locally imposed bar to reenlistment would be assigned the RE-3 code.

2.  The evidence of record clearly shows that the applicant was separated by reason of a locally imposed bar to reenlistment and that he had less than 
18 years of service at the time.  Therefore, his records should be corrected to show that he was separated with an RE-3 code.

BOARD VOTE:

__ JTM __  __LMD__  __JBM _  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was separated from the service with an RE-3 code; and by providing him with a correction of his DD Form 214 that reflects this correction.



	_        John T. Meixell _____
          		CHAIRPERSON
INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.