IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090014489 


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 3 and Separation Program Designator (SPD) code of KGF be changed to more appropriate codes.   

2.  The applicant states, in effect, his discharge was the result of family problems. H has excelled in the criminal justice field since his discharge and a change to these codes would allow him to again serve his country.  

3.  The applicant provides a reenlistment recommendation packet from his chain of command, training certificates, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 military record shows he enlisted in the Regular Army (RA) on 26 January 1983.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's record shows that during his active duty tenure he earned the Army Achievement Medal, Army Good Conduct Medal (2nd Award), Army of Occupation Medal, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Southwest Asia Service Medal, Army Superior Unit Award, Expert Marksmanship Qualification Badge with Rifle Bar, Medal, Marksman Marksmanship Qualification Badge with Grenade Bar, and Driver and Mechanic Badge with Driver Bar.  

4.  On 19 June 1991, the unit commander prepared a DA Form 4126-R (Bar to Reenlistment Certificate) on the applicant.  The commander cited the applicant's demonstrated apathetic attitude, the poor qualities of his daily performance, and his failure of the Skill Qualification Test as the basis for taking the action.  

5.  On 20 July 1991, the Berlin Brigade commander, a brigadier general, approved the applicant's bar to reenlistment.  

6.  On 11 September 1991, the applicant requested separation under the provisions of paragraph 16-5, Army Regulation 635-200, based on his locally imposed bar to reenlistment, and the unit commander recommended approval of the applicant's request.  

7.  On 1 October 1991, the separation authority approved the applicant's request and directed that he be separated under the provisions of paragraph 16-5b, Army Regulation 635-200, with an honorable discharge.  On 25 December 1991, the applicant was discharged accordingly.  

8.  He was assigned an SPD code of KGF and an RE code of 3.  

9.  On 12 May 2006, the Army Discharge Review Board (ADRB), after carefully considering the applicant's record of military service, the issues, and the documents he presented, determined that the authority and reason for his discharge were proper and equitable and voted to deny his request to change them.  


10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.

11.  Chapter 3 of Army Regulation 601-280 also includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process waiver requests. 

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The version of the regulation in effect at the time stated, in pertinent part, that the SPD code KGF was the appropriate code to assign to Soldiers separated under the provisions of paragraph 16-5b, Army Regulation 635-200, by reason of locally imposed bar to reenlistment.  The SPD/RE Code Cross Reference Table in effect at the time provided for assigning either an RE-3 or RE-4 code.  The instructions stipulated that RE-4 would be assigned when a member had a locally imposed bar to reenlistment and 18 or more years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD and RE codes should be changed to more favorable codes was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The regulation in effect at the time provided for assigning the SPD code of KGF to members separated under the provisions of paragraph 16-5b, 
Army Regulation 635-200, by reason of a locally imposed bar to reenlistment.  The appropriate corresponding RE code for members with less than 18 years of service was an RE code of 3.  

3.  The evidence of record confirms a local bar to reenlistment was imposed on the applicant and he voluntarily requested discharge as a result.  It further shows his separation processing was accomplished in accordance with the applicable regulation and he was properly assigned the SPD code of KGF and an RE code of 3 based on the authority and reason for discharge.  As a result, absent any evidence of error or injustice related to the applicant's assigned SPD and or RE codes there is an insufficient basis to support granting the requested relief.  

4.  Although the applicant was assigned an RE code of 3, this does not prohibit him from reenlisting.  There are regulatory provisions that allow him to apply for a waiver to enlist/reenlist.  Therefore, if he would like to reenter military service, he should consult with recruiting officials, who are responsible for submitting 
RE code waivers.  

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)                                         AR20090014489



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014489



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1