IN THE CASE OF:
BOARD DATE: 17 November 2009
DOCKET NUMBER: AR20090010247
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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), item 27 (Reentry (RE) Code) to show he was assigned a 3 instead of a 4 so that he may be allowed to enlist.
2. The applicant states he voluntarily signed a DA Form 4991-R (Declination of Continued Service Statement (DCSS)). He further states that based on Army Regulation 635-200 (Personnel Separations Enlisted Separations), paragraph 16-4b, the reentry code for this specific action should have warranted a reentry code of 3.
3. The applicant provides a copy of his DD Form 214; a DA Form 4991-R; a 504th Military Intelligence Brigade (REAR) (PROV) memorandum, subject: Separation Under the Provisions of Army Regulation 635-200, Chapter 16-4, Non-retention on Active Duty, dated 12 February 2004; a DA Form 4187 (Personnel Action); and a DA Form 4187-1-R (Personnel Action Form Addendum) in support of this 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 applicants 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 applicants 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 records show he enlisted in the Regular Army on 18 November 1997. He was awarded the military occupational specialty of signal support systems specialist, and sergeant/E-5 was the highest rank that he achieved.
3. The applicant provided a signed DA Form 4991-R, dated 12 November 2003, which indicates that, in effect, he voluntarily requested separation in lieu of an assignment in Korea.
4. The applicant was honorably discharged from active duty on 26 March 2004 after completing 6 years, 4 months, and 9 days of creditable active service. His DD Form 214 shows he was assigned a separation program designator (SPD) of KGH and an RE code of 4.
5. Army Regulation 635-200, chapter 16, specifies that Soldiers serving on a second or subsequent enlistment who are denied or ineligible for continued active duty service for refusing to take action to meet military service remaining requirements may request voluntary separation by signing a DA Form 4991R pursuant to Army Regulation 601-280 (Army Retention Program).
6. Army Regulation 635-5-1 (SPD Codes), table 2-3, indicates the SPD code of KGH denotes Non-Retention on Active Duty.
7. The Army Human Resources Command publishes a cross-reference list of SPD and RE codes. The cross-reference list in effect at the time showed that an SPD code of KGH was assigned an RE code of 3 or 4. The SPD/RE Code Cross-Reference table specified that an RE code of 3 will be entered when a Soldier's record indicates the Soldier has a DCSS.
8. 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve Components. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a
list of Armed Forces RE codes. This regulation also states that an RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. An RE code of 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.
9. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides that RE codes may be changed only if they are determined to be administratively incorrect.
DISCUSSION AND CONCLUSIONS:
1. The available evidence indicates the applicant should have been assigned an RE code of 3. Therefore, it would be appropriate to correct his DD Form 214 to show he was assigned an RE code of 3.
2. In view of the foregoing, the applicant is entitled to have his records corrected as shown 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 deleting the RE code in item 27 of his DD Form 214 and adding the RE code of 3.
_______ _ _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.
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