IN THE CASE OF:	  

		BOARD DATE:	    9 March 2010

		DOCKET NUMBER:  AR20090015110 


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 reenlistment (RE) code of RE-3 & 4 be changed to a more favorable RE code.

2.  The applicant states, in effect, that he is requesting that his RE code of 
RE 3 & 4 be changed to a more favorable code so that he may enlist in the Army National Guard (ARNG).  He claims he is more mature and will be an asset to his country if allowed to reenter military service. 

3.  The applicant provides 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 record shows he enlisted in the Regular Army and entered active duty on 7 March 1984.  He was trained in and served in military occupational specialty (MOS) 63W (Wheel Vehicle Repairer).  

3.  The applicant's record shows that during his tenure on active duty he earned the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Hand Grenade Bar. 

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated: 10 August 1984, for being absent without leave (AWOL) for 24 days; 21 January 2005, for failing to repair for a battalion run; and 28 March 1985, for failing to repair for company formation and for a GI party.

5.  On 15 April 1985, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant based on the applicant's demonstrated lack of military adaptability, irresponsibility, lack of trainability, and negative attitude.  The commander stated that throughout the applicant's time in service he had repeatedly been absent from place of duty, was unable to conform to security requirements, and was unable to maintain acceptable standards of appearance.  He further stated the applicant's behavior interfered with the accomplishment of his duties and brought discredit upon the unit.  

6.  On 16 April 1985, the applicant confirmed receipt of his Bar and elected not  to submit a statement on his own behalf.  On 17 April 1985, the appropriate authority approved the applicant's Bar to Reenlistment.  

7.  On 30 April 1985, the applicant requested early separation under the provisions of paragraph 16-5b, Army Regulation 635-200.  In his request he acknowledged that he understood that if his request for separation was approved, the recoupment of unearned portions of any Enlistment Bonus (EB)/Selective Reenlistment Bonus (SRB) was required and that he would not be permitted to reenlist at a later date.

8.  On 6 May 1985, the separation authority approved the applicant's discharge 
and on 17 May 1985, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he was honorably discharged under the provisions of paragraph 16-5b, Army Regulation 635-200, by reason of a locally imposed bar to reenlistment.  Item 26 (Separation Code) shows that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of "KGF," and item 27 (Reenlistment Code) shows he received an RE code of "RE-3 & 4." 
9.  Army Regulation 635-200 sets forth the policies and procedures for the administrative separation of enlisted personnel of the Army.  Paragraph 16-5, in effect at the time, provided the authority for Soldiers denied or ineligible for continued active duty service to be separated upon their request.  It allowed Soldiers who perceived that they could not overcome a locally imposed bar to reenlistment to request early separation. 

10.  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 (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 criteria for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-4 applies to members permanently disqualified from further service.  

11.  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.  It states, in pertinent part, that the SPD code of KGF is the proper code to assign Soldiers separated under the provisions of paragraph 16-5b of Army Regulation 635-200, by the reason of locally imposed bar to reenlistment.  The SPD/RE Code Cross Reference Table in effect at the time established RE-4 as the proper code to assign members separated with SPD code of KGF if the member has 18 or more years of total active service, and established RE-3 as the proper code to assign Soldiers separated under these provisions who had less than 18 years of active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his RE 3 & 4 be changed to a more favorable code was carefully considered and found to have partial merit.  By regulation the proper reentry code to assign members separating under the provisions of paragraph 16-5b, Army Regulation 635-200, by reason of locally imposed bar to reenlistment who are assigned an SPD code of KGF with less than 18 years of active service is RE-3 and not RE-4.  Therefore, it would be appropriate to correct the applicant's record to show that he was assigned an RE code of RE-3 in conjunction with his 1985 separation.


2. The applicant is advised that although the change to his RE code is recommended, he will still retain the RE-3 portion of the code which means he is not fully eligible for reenlistment.  However, the RE-3 code does allow his enlistment with a waiver.  As a result, if the applicant desires to enlist he should contact a local recruiter.   These individuals can determine his eligibility for enlistment based on the Army's current needs and are responsible for submitting waivers.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the current entry in item of his 17 May 1985 DD Form 214 and replacing it with the entry "RE-3" and by providing him a correction to his separation document that includes this change.

2.   The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his 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.

ABCMR Record of Proceedings (cont)                                         AR20090015110



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ABCMR Record of Proceedings (cont)                                         AR20090015110


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