IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080008095 


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 that his records be corrected by upgrading his reentry code (RE Code) from RE-4 to a more favorable code so he may reenter the Army.

2.  The applicant states that he was not provided with legal representation at the time and that he is now much wiser and would still make a top-notch Soldier.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Self-authored statement, dated 26 March 2008.

	b.  Two Letters of Appreciation, dated 29 August 1978 and 20 July 1980.

	c.  Two Letters of Commendation, dated 20 October 1981 and 16 April 1984.

	d.  Certificate of Membership in the "500 Mile Club," dated 10 February 1982.

	e.  Awesome Client-Site Employee Certificate, dated 17 March 2004.

	f.  Letter of Appreciation, dated 21 March 1997, from the City of Cincinnati, Ohio.

	g.  Three Character Reference Letters, dated on miscellaneous dates in 2004 and 2007.

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 he enlisted in the Regular Army for a period of 4 years on 2 June 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 05B (Radio Operator).  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.  He was honorably separated and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 1 June 2006.

3.  The applicant's awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Air Assault Badge, the Good Conduct Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badges with Grenade and Machine-Gun Bars. 

4.  After a break in service, the applicant enlisted in the Regular Army for a period of 4 years on 12 September 1983, in the rank/grade of SP4/E-4.  He was subsequently assigned to Fort Bliss, Texas, where he completed advanced individual training and was awarded MOS 16S (Manual Portable Air Defense System Crewman).

5.  On 6 June 1984, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully possessing an unknown amount of marijuana.  His punishment consisted of reduction to the grade of E-3, subsequent reduction to the grade of E-2 (suspended for 60 days), forfeiture of $200.00 per month for two months, 45 days of restriction, and 45 days of extra duty.  

6.  On 6 June 1984, the applicant appealed his punishment; however, his appeal was denied by the next higher authority on 21 June 1984.

7.  On 7 June 1984, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant.  The immediate commander remarked that the applicant had one instance of a field-grade Article 15.

8.  On 7 June 1984, the applicant was furnished a copy of the Bar to Reenlistment Certificate.  He elected to submit a statement on his own behalf.  In his statement, the applicant stated that the Army spent thousands of tax-payers' dollars to train him and that the Army owed the tax-payers to keep an expert Soldier like him in the Army.  He further appealed to the approving authority to remove his bar to reenlistment.

9.  On 8 June 1984, the applicant’s battalion commander approved the Bar to Reenlistment Certificate. 

10.  On 17 July 1984, the applicant requested separation from the Army under the provisions of paragraph 16-5b of Army Regulation 635-200 (Personnel Separations), because he was unable to overcome a locally imposed bar to reenlistment. 

11.  In his request, the applicant stated that he understood he was being separated prior to his normal expiration of his term of service for his own convenience and that once separated, he would not be permitted to reenlist at a later date. 

12.  On 17 July 1984, the applicant’s immediate commander recommended approval of the applicant’s request.  He further remarked that based on the applicant's past performance, there was no indication that the applicant would be able to overcome the bar to reenlistment and that favorable consideration of his discharge was in the best interest of the Army.

13.  On 17 July 1984, the separation authority approved the applicant's separation for non-retention on active duty/local bar to reenlistment, in accordance with chapter 16-5b of Army Regulation 635-200 and directed his term of service be characterized as honorable.  Accordingly, the applicant was discharged on 30 July 1984.  The DD Form 214 he was issued at the time confirms he completed 4 years, 9 months, and 11 days of active military service. Item 25 (Narrative Reason for Separation) shows the entry “Locally Imposed Bar to Reenlistment”, Item 26 (Separation Code) shows the entry “KGF”, and Item 27 (RE Code) shows the entry “RE-4.”

14.  The applicant submitted a self-authored statement, dated 26 March 2008, in which he states that while he was a student at Fort Bliss, he did not know anyone and had no idea who to turn to for help.  He also adds that he was threatened by the Army investigators and never got to speak with an attorney.  In the end, he admitted to the agents because  if he did not, he would have gone to prison for a long period of time.  He further states that he held a Top Secret Clearance during his military service and has, in effect, been a model citizen since his discharge.  He concludes that if he were given the opportunity to reenter the Army, he would make a superb Soldier.

15.  The applicant provided three character reference letters in which the authors comment on high degree of integrity, responsibility, and leadership abilities.

16.  The applicant also submitted several letters of achievement, commendation, and appreciation to show his performance and achievements during his military service. 

17.  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. 

18.  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.

19.  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 "KGF" Separation code is the correct code for Soldiers separating under chapter 16-5b of Army Regulation 635-200, Bar to Reenlistment.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s post service personal and professional achievements, character reference letters, as well as his self-confidence are noted.  However, inasmuch as the applicant was discharged based on his inability to overcome a bar to reenlistment, the reason and authority for discharge are correct as currently shown on his DD Form 214. 

2.  The applicant's records show that he accepted punishment under Article 15 of the UCMJ for possessing an unknown amount of marijuana.  He elected not to demand trial by court-martial.  He appealed his punishment; but, his appeal was denied after being reviewed by the Assistant Staff Judge Advocate.  He was subsequently barred from reenlisting and voluntarily requested discharge from the Army.


3.  At the time of his discharge, he received a separation code of KGF and an  RE code of 4.  The SPD code of KGF and RE code of 4 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 16-5b of Army Regulation 635-200.  Furthermore, in accordance with applicable regulation in effect at the time of his discharge, the SPD and RE codes entered on his DD form 214 were consistent with the reason and authority for his discharge.  

4.  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, he 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.



							XXX
 _   _______   ______________
       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)                                         AR20080008095





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ABCMR Record of Proceedings (cont)                                         AR20080008095



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