IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20080003695 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 reenlist in the Army.  He further requests, in effect, that his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to show award of the Army Achievement Medal, National Defense Service Medal, North Atlantic Treaty Organization (NATO) Medal, Kosovo Campaign Medal, Expert Infantryman Badge, and the Overseas Service Ribbon.

2.  The applicant states that he wants another chance to prove himself to his family, to the United States Army and to his country.  

3.  The applicant provides copies of his DD Form 214, award orders for the Expert Infantryman Badge, and letters from the Florida Metropolitan University showing his enrollment and honor list status. 

CONSIDERATION OF EVIDENCE:

1.  On 22 June 1999, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 
11B (Infantryman).

2.  On 19 November 1999, the applicant was assigned for duty with the 3rd Battalion, 7th Infantry (Mechanized) Regiment, 3rd Infantry Division, at Fort Stewart, Georgia.

3.  On 15 May 2001, the applicant was reassigned to the Forward Element of the 3rd Battalion, 7th Infantry (Mechanized) Regiment.  However, the record does not identify where the unit was stationed or what military operation was being supported.

4.  Permanent Orders 127-22, 3rd Infantry Division, dated 7 May 2002, awarded the applicant the Expert Infantryman Badge for the period from 2 to 7 May 2002.

5.  On 6 November 2002, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL (eight specifications) and for violation of Article 91, for willfully disobeying a lawful order from a superior noncommissioned officer.

6.  On 20 December 2002, the applicant was discharged in lieu of trial by court-martial under the provisions of Army regulation 635-200, chapter 10. Accordingly, he was given a Separation Program Designator (SPD) Code of KFS and an 
RE Code of 4.  His characterization of service was under other than honorable conditions.  

7.  In September 2007, the ADRB reviewed the applicant's discharge and upgraded it to general under honorable conditions.  The ADRB did not find error or injustice with the reason for discharge.

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  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.


10.  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 KFS 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, Chapter 10, in lieu of trial by court-martial. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

11.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 list his awards as the Army Service Ribbon.

12.  Title 10 of the United States Code, section 1130 (10 USC §1130) provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

13.  Army Regulation 600-8-22 (Military Awards) provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  This regulation also provides that the second and subsequent awards of the National Defense Service Medal are denoted by a bronze service star affixed to the National Defense Service Medal.

14.  Army Regulation 600-8-22 (Military Awards) provides for award of the Global War on Terrorism Service Medal.  This award is designated for Soldiers who have participated in or served in support of Global War on Terrorism Operations outside of the designated area of eligibility determined for award of the Global War on Terrorism Expeditionary Medal on or after 11 September 2001 to a date to be determined.  All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized this award.  

15.  Army Regulation 600-8-22 (Military Awards) shows that the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981 and the overseas service is not recognized with another U.S. service medal.  Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon.

16.  Award of the Kosovo Campaign Medal and the NATO Medal for Kosovo service are based on proof of service in support of specific operations beginning in March 1999 operations in the specified area of operations.  To be eligible for award of the Kosovo Campaign Medal an individual must be in a unit participating in operation for 30 consecutive days or 60 nonconsecutive and/or meet other established criteria or directly supporting the following operations:  Operation Allied Force (24 March 1999 through 10 June 1999); Operation Joint Guardian (11 June 1999 through a date to be determined); Operation Allied Harbour (4 April 1999 through 1 September 1999); Operation Sustain Hope/Shining Hope (4 April 1999 through 10 July 1999); Operation Noble Anvil (24 March 1999 through 20 July 1999); or Kosovo Task Forces Hawk (5 April 1999 through 24 June 1999); Saber (31 March 1999 through 8 July 1999); Falcon (11 June 1999 through a date to be determined), coinciding with Joint Guardian; or Hunter within areas of operation for the Kosovo Air Campaign and/or the Kosovo Defense Campaign.  

DISCUSSION AND CONCLUSIONS:

1.   The ADRB reviewed the applicant's discharge and upgraded his characterization of service to general, under honorable conditions.  At the same time, it did not find fault with the original reason for his discharge.

2.  The RE Code 4, establishing his ineligibility for enlistment/reenlistment, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.

4.  In view of the foregoing, there is no basis for granting the applicant's request to change his reentry code.

5.   There is no evidence of record and the applicant has not provided any substantiating evidence to show that he was awarded the Army Achievement Medal.  Therefore, his request for this award should be denied.

6.  While the available evidence is insufficient for awarding the applicant an Army Achievement Medal, this in no way affects the applicant’s right to pursue his claim for the award by submitting a request through his Member of Congress under the provisions of 10 USC §1130.

7.  There is no available evidence of record showing that the applicant served in a qualifying location for award of the Kosovo Campaign Medal or the NATO Medal.  Therefore, his request for these awards should be denied.

8.  Records show that the applicant served a qualifying period for award of the National Defense Service Medal, Global War on Terrorism Service Medal, and the Overseas Service Ribbon.  Therefore, his records should be corrected to show these awards.

9.  Permanent Orders awarded the applicant the Expert Infantryman Badge.  Therefore, his records should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing in addition to the award shown on his DD Form 214, that his awards include the National Defense Service Medal, Global War on Terrorism Service Medal, Expert Infantryman Badge, and the Overseas Service Ribbon. 
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the applicant’s reentry code and award of the Army Achievement Medal, NATO Medal, and the Kosovo Campaign Medal.    




       _   ____X___   ___
       CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080002828



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003695



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1