IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080005399 


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, removal of her reentry eligibility (RE) code of RE-3 from her discharge record.

2.  The applicant states that she was young, a new mother and wife, and new to the Army when she received a Red Cross message that her father was ill and dying of cancer.  Her spouse was stationed in Japan and she had no family support around her.  She requested to return home to be with her father, but her unit denied her request.  Her father died shortly after she gave birth to her son and she was left to care for her sister.  She requested to stay home longer to take care of her sister and father’s affairs, but her request was denied.  She was subsequently attached to a U.S. Army Reserve unit which allowed her some time off.  However, when she returned to her parent unit, the chain of command suggested an honorable discharge.  She is more mature, more experienced, she has a college degree, and she is better equipped to handle life’s ups and downs. 

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 November 1994. 

	b.  Son’s Certificate of Birth, dated 21 July 1994.

	c.  Certificate of Marriage, dated 22 December 1993.

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 records show that she was born on 13 August 1973 and enlisted in the Regular Army for a period of 4 years, at the age of 19 years and 5 months, on 9 February 1993.  She completed basic combat training at Fort Jackson, South Carolina, on 30 April 1993, and proceeded to Walter Reed Army Medical Center (WRAMC), Washington, D.C. to attend advanced individual training (AIT) for military occupational specialty (MOS) 91T (Animal Care Specialist).

3.  On 20 August 1993, the Chief, Department of Instruction, Division of Veterinary Medicine, WRAMC, recommended the applicant be relieved from the 91T course due to academic failure.  Accordingly, the applicant was notified and she acknowledged receipt of the notification and requested an appointment with the Class Advisor and/or Director.

4.  On an unknown date in August 1993, the Director, Division of Veterinary Medicine, WRAMC, approved the recommendation to academically dismiss the applicant from the Animal Care Specialist Course.  Accordingly, the applicant was dismissed.

5.  On 15 November 1993, the applicant proceeded to Fort Eustis, Virginia, where she attended and completed AIT, and was awarded MOS 88N (Traffic Management Coordinator).  She was subsequently assigned to the 71st Transportation Battalion, Fort Eustis, Virginia.






6.  On 14 August 1994, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from a superior commissioned officer, to physically report back to her unit or to call if unable to return after her medical appointment on 1 August 1994.  Her punishment consisted of reduction to private (PVT)/E-1 (suspended until 17 November 1994).  The applicant appealed the punishment on 19 August 1994; however, on 23 August 1994, the next superior authority denied her appeal.   

7.  On 9 September 1994, the suspended portion of the punishment imposed on 19 August 1994 was vacated due to the applicant’s failure to provide a complete dependent care plan.  

8. On 19 September 1994, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The immediate commander remarked that the applicant was resistant to taking/following orders and/or guidance from the chain of command; displayed apathy and disinterest towards her job, the unit, her military obligations, and the Army; and could not manage her personal and family affairs by repeated counseling to provide a dependent care plan by an established suspense date and resulted with a supplementary action under Article 15 of the UCMJ.  

9.  On 28 September 1994, the applicant’s battalion commander approved the Bar to Reenlistment.  The applicant elected not to appeal the bar.

10.  On 10 October 1994, the applicant requested separation from the Army under the provisions of paragraph 16-5 of Army Regulation 635-200 (Personnel Separations), because she was unable to overcome a locally imposed bar to reenlistment.

11.  On 11 October 1994, the applicant’s immediate commander recommended approval of the applicant’s request.

12.  On 21 October 1994, the applicant underwent a mental status evaluation.  The Chief, Community Mental Health, MacDonald Community Hospital, Fort Eustis, Virginia, remarked that the applicant was cleared for any administrative action deemed appropriate by her chain of command. 

13.  On 28 October 1994, the separation authority approved the applicant's separation for non-retention on active duty, in accordance with chapter 16-5 of Army regulation 635-200 and directed her term of service be characterized as honorable.  On 16 November 1994, the applicant was discharged accordingly.  The DD Form 214 she was issued at the time confirms she completed a total of 1 year, 9 months, and 8 days of active military service.  Item 25 (Narrative Reason for Separation) shows the entry “Non-Retention on Active Duty”, Item 26 (Separation Code) shows the entry “KGH”, and Item 27 (RE Code) shows the entry “RE-3.”

14.  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. 

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that Soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar, may apply for immediate discharge. Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

16.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "KGH" Separation code is the correct code for Soldiers separating under chapter 16-5 of Army Regulation 635-200, Bar to Reenlistment, or non-retention on active duty.
17.  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), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) 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 RE codes, including Regular Army RE codes.  An RE–1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated and RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable; and

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  The DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  In the version in effect at the time, Item 27 shows the RE Code.  The RE codes are not applicable to officers, USMA cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her RE-3 code should be removed. 

2.  The evidence of record shows that the applicant was 19 years of age at the time of her enlistment and 20 years of age at the time of her offense.  However, there is no evidence that indicates that she was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that her acts of indiscipline were the result of her age.

3.  The applicant’s post service personal and professional achievements, successful marriage, and college education were noted.  However, inasmuch as the applicant was discharged based on her inability to overcome a bar to reenlistment, the reason and authority for discharge are correct as currently shown on her DD Form 214. 
4.  At the time of her discharge, she received a separation code of KGH and an RE code of 3.  The SPD code of KGH and RE code of 3 were the appropriate codes for the applicant based on the guidance provided in Army Regulation    635-5-1 for Soldiers separating under the provisions of chapter 16-5 of Army Regulation 635-200.  Furthermore, in accordance with applicable regulation in effect at the time of her discharge, the SPD and RE codes entered on her DD form 214 were consistent with the reason and authority for her discharge.  There is no provision in Army Regulation 635-5 to remove this entry for Regular Army enlisted Soldiers.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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 _   _______   ______________
       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)                                         AR20080005399



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ABCMR Record of Proceedings (cont)                                         AR20080005399



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