IN THE CASE OF:	  

		BOARD DATE:	       27 January 2009

		DOCKET NUMBER:  AR20080014488 


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 4 be changed to one that will allow him to enlist.

2.  The applicant states he was coerced into accepting a locally imposed bar to reenlistment due to a personality conflict with the First Sergeant.  He asks that the code be changed to allow him to enlist.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 entered active duty on 1 December 1983, completed training, and was awarded the military occupational specialty (MOS) 67Y (Attack Helicopter Repairman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 July 1985 for making a false official record.  The applicant signed an Aircraft Inspection and Maintenance Record indicating he had preformed a preventive maintenance daily inspection when he had not.  His punishment was reduction to private (PV2), E-2; and

	b.  on 8 January 1986, for failure to obey a lawful order and being absent from his place of duty.  His punishment was 7 days in the Correctional Custody Facility (CCF).

4.  A bar to reenlistment was imposed on 12 February 1986.  The reasons cited where his two NJPs, a letter of indebtedness, and the unit commander's opinion that the applicant lacked the moral character, personal competence, and adaptability that would warrant further service.

5.  On 12 February 1986, the entry of "SM is not recommended for future service" was entered on his DA Form 2-1 (Personnel Qualification Record).

6.  On 5 March 1986, the applicant requested immediate discharge under Army Regulation 635-200, Chapter 16.  He stated that he did not believe he could overcome the bar to reenlistment and requested immediate separation.

7.  The applicant was honorably discharged on 11 April 1986 under the provisions of Army Regulation 635-200, paragraph 16-5b with a separation program designator (SPD) of KGF and an RE code of 4.  He had served 2 years, 4 months, and 11 days with no recorded lost time.

8.  Army Regulation 635-200 (Personnel Separations), as then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 16 covered discharges caused by changes in service obligations.  Paragraph 16-5 applied to personnel denied reenlistment and provided that Soldiers who receive DA imposed or locally imposed bars to reenlistment.  It stated that a Soldier who perceived that they would be unable to overcome the bar could request immediate discharge.  Incident to the request, the member had to state that he/she understood that recoupment of unearned portions of any enlistment or reenlistment bonus was required and that later reenlistment would not be permitted [emphasis added].

9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, paragraph 16-5 mandates an SPD of KGF.

10.  Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an Army RE code of "2" may usually reenlist in the Army or another service with various restrictions, or if the circumstances which resulted in the code no longer apply.  Individuals with an RE code of "3" can normally reenlist but will probably require a waiver to be processed.  Individuals with an Army RE code of "4" are normally not eligible to reenlist in the Army, nor join another service.  Further, an RE-4 applies to persons separated in pay grade E-2 and below.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was coerced into accepting a locally imposed bar to reenlistment due to a personality conflict with the First Sergeant.  He asks that the code be changed to allow him to enlist.

2.  The record does not contain and the applicant has not provided any documentation to indicate that the bar to reenlistment was improper or that he was coerced into accepting it.  

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, paragraph 16-5b.  He submitted a statement acknowledging that he would not be permitted to reenlist at a later date.  This constitutes a complete bar to reenlistment warranting an RE 4.  

4.  Further, since the applicant was discharged in pay grade E-2, an RE-4 is also warranted.  Therefore, there is no justification to warrant a change to his RE code.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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)                                         AR20080014488



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ABCMR Record of Proceedings (cont)                                         AR20080014488



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