IN THE CASE OF:	  

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080011791 


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 bar to reenlistment be waived, in effect, an upgrade of his Reenlistment Eligibility (RE) Code.  

2.  The applicant states, in effect, he is requesting that his locally imposed bar to reenlistment be lifted.  He is a different person than he was in 1987.  At age 21, he was young, immature and he was inexperienced.  Therefore, he did not value what the military had to offer.  He realizes the mistakes he made and he would like another opportunity to serve as a Soldier.

3.  The applicant provides a copy of his separation documents in support of his application.  

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 record shows he enlisted in the Regular Army and entered active duty on 11 January 1985.  He was trained in, awarded and served in military occupational specialty (MOS) 63T (BFVS Systems Mechanic) and the highest rank he attained while serving on active duty was private first class (E-3). 

3.  The record also shows that during his active duty tenure, the applicant earned the Army Service Ribbon, the Marksman Qualification Badge with Rifle Bar 
(M-16), and Sharpshooter Qualification Badge with Grenade Bar.  

4.  On 28 March 1986, the applicant’s unit commander prepared a Bar to Reenlistment Certificate (DA Form 4126-R).  The reasons cited for the bar was that the applicant had been identified as a drug abuser.  Also, on 19 March 1986, the applicant had received a field grade article 15 for violation of Article 112, of the UCMJ.  His punishment included reduction to private (E-2), a forfeiture of $358.00 for 2 months, and 45 days of extra duty.  This Bar to Reenlistment was approved by the proper authority on 24 April 1986.  

5.  On 5 January 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the wrongful overindulgence of intoxicating liquor, and for being incapacitated for the performance of his duty on or about 4 December 1986.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of $149.00 pay, and
14 days of extra duty and restriction.   

6.  On 14 January 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for assaulting a noncommissioned officer on by pushing him into a bookcase, and by being disrespectful in language towards a noncommissioned officer by using profanities and threats on 6 and 7 January 1987.  His imposed punishment was a reduction to pay grade E-2, a forfeiture of $100.00, and 14 days of extra duty, and restriction.   

7.  On 30 January 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ, for being drunk and disorderly on 
10 January 1987.  His imposed punishment was a forfeiture of $141.00 pay, and 14 days of extra duty and restriction.   

8.  On 3 February 1987, the applicant requested to be separated under the provisions of paragraph 16-5, Army Regulation 635-200.  In his request, he stipulated that the request was voluntary and made after he had consulted with legal counsel.  He further acknowledged that he understood that if his request for separation was approved, he would not be permitted to reenlist at a later date.  

9.  On 13 February 1987, the applicant was honorably separated under the provisions of paragraph 16-5b, Army Regulation 635-200, by reason of a locally imposed bar to reenlistment.  The DD Form 214 he was issued at the time confirms that he had completed 2 years, 1 month and 3 days of active military service and he held the pay grade of E-1.  Item 26 (Separation Code), of his 
DD Form 214 contains the code of "KGF" and Item 27 (RE Code) contains an RE Code of "RE-4." 

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b of the regulation specified that Soldiers denied reenlistment could be voluntarily separated before the expiration of their term of service.  Soldiers who perceive that they would be unable to overcome a locally imposed bar to reenlistment could request immediate separation.  The service of Soldiers separated under this paragraph would be characterized as honorable.  

11.  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, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.

12.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with a RE code of RE- 4 are ineligible for enlistment.  

13.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

14.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes can be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

15.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation shows that the SPD for "KGF," as shown on the applicant’s DD Form 214, is appropriate for locally imposed bar to reenlistment and that the authority for discharge under this SPD is Army Regulation 635-200, paragraph 16-5b.

16.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KGF" has a corresponding RE Code of "3" or "4."  It further specified that RE-3 would be assigned for local bar to reenlistments for Soldiers with less than 18 years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was honorably discharged on 13 February 1987, under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally imposed bar to reenlistment.  He was credited with completing 2 years, 1 month, and 3 days of total active service.  He was issued a Separation Code of "KGF" that has a corresponding RE Code of "RE-3" for Soldiers with less than 
18 years of service.  However, the applicant’s DD Form 214 shows an RE Code of "RE-4." 

2.  The applicant's RE Code of "RE-4" is not consistent with the basis for his separation.  Therefore, it would be appropriate to correct the applicant's records to show a RE Code of "RE-3" which is consistent with the basis for his reason for separation and the number of years he had served at the time of separation.  

3.  If the applicant wishes to reenlist in the United States Army, an RE Code of "3" is waivable, therefore, he should seek the guidance of Armed Forces recruiters/career counselors in seeking such a waiver, if he is otherwise qualified.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

____X____  __X____  ____X__  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 a RE Code of "RE-3" in item 27 of his DD Form 214, dated 13 February 1987.



      ___________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)                                         AR20080011791



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ABCMR Record of Proceedings (cont)                                         AR20080011791



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