IN THE CASE OF:	

		BOARD DATE:	  30 October 2008

		DOCKET NUMBER:  AR20080013196 


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 of RE-3, that was assigned to him due to a locally imposed bar to reenlistment be upgraded.

2.  The applicant states that he believes the local bar to reenlistment was unfairly placed on him by his first sergeant in order to force him out of the service.  He is unable to serve in the Army Reserve due to having an RE code of RE-3.  He further states that he received two Articles 15, but “he was never brought up on any charges.”

3.  The applicant provides a copy of his separation document (DD Form 214), DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), first endorsement to the request for Early Separation of Personnel Denied Reenlistment, DA Form 4187 (Personnel Action), DA Form 4126 (Bar To Reenlistment Certificate), an unsigned memorandum submitted by the applicant, and a DA Form 2627 (Record of Proceeding Under Article 15).

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 military personnel record shows he enlisted in the Regular Army on 6 November 1990.  He completed the necessary training and was awarded the military occupational specialty (MOS) 55B (Ammunition Specialist).

3.  On 27 June 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a superior noncommissioned officer.

4.  The Bar to Reenlistment Certificate, dated 26 August 1991, shows that a local bar to reenlistment was imposed against the applicant.  The reasons given for the local bar to reenlistment were disrespect towards a noncommissioned officer and missing formation.  On 4 September 1991, the local bar to reenlistment was approved.  The applicant did not submit any statement in his own behalf and he did not appeal the local bar to reenlistment.

5.  The DA Form 4187, signed and dated by the applicant shows he requested early separation from the Army under the provisions of Army Regulation  
635-200 (Personnel Separation), Chapter 16-5(b), due to a locally imposed bar to reenlistment.  The applicant did not feel he was able to overcome the bar to reenlistment by his expiration term of service, which was 12 April 1995.  He understood any unearned portion of an enlistment bonus would be recouped, that he would receive an honorable discharge, and he would not be transferred into the Individual Ready Reserve (IRR) to complete any remaining service obligation.

6.  On 23 January 1992, the approving authority approved the request for early separation under the provisions of Army Regulation 635-200, chapter 16-5(b), for locally imposed bar to reenlistment and directed the applicant be issued an Honorable Discharge Certificate.

7.  On 10 February 1992, the applicant was honorably discharged from active duty.  The DD Form 214 he was issued shows he received an RE Code of  
RE-3.  He completed 1 year, 3 months, and 5 days of Net Active Service This Period.



8.  Army Regulation 635-200 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.  

9.  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 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.

10.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation  
601-210 states that RE-1 applies to persons who are considered qualified for reentry or continuous service at time of separation.  A code of RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

11.  Army Regulation 635-5-1 (Separation Program Designated (SPD) Codes), in effect at the time, Table 2-3, states that the SPD code of KGF denotes separation due to a local bar to reenlistment.  This table shows a Soldier assigned an SPD code of KGF are assigned a RE-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a RE code of RE-3 that was assigned to him due to a locally imposed bar to reenlistment be upgraded.

2.  The applicant's RE code of RE-3 was properly assigned based on the fact the applicant received a locally imposed bar to reenlistment.  Therefore, there is no reason to change a correctly assigned RE code.

3.  The applicant's RE-3 code simply implies that he was not eligible to reenlist at the time of his separation and that if the needs of the service so dictate, he could be granted a waiver of the disqualification.

4.  The applicant's statement was considered.  However, the evidence shows that the applicant requested early separation under the provisions of Army Regulation 635-200, chapter 16-5(b), because he was unable to overcome the locally imposed bar to reenlistment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  __X_____  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.




      _______ _   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)                                         AR20080013196



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ABCMR Record of Proceedings (cont)                                         AR20080013196



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