BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007066 


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 his RE (Reentry) code of 3 be changed to a 1.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 86 months of service with no other adverse actions.

3.  He states when he was assigned to Fort Stewart, Georgia in September 1996 he was in the process of getting a divorce.  One of his subordinates, a woman, was also undergoing a divorce and because of this “commonality” they spent off duty time together talking to each other.  On 26 October 1996, his shop went out to celebrate a successful training exercise and the subordinate asked him to dance a slow song.  While dancing they thanked each other for the assistance each was giving the other and then he proceeded to kiss the subordinate on the cheek.  He states his action was witnessed by another Soldier.  

4.  The applicant states he received a summarized Article 15, under the (Uniform Code of Military Justice (UCMJ)) for the above action which he agrees he deserved although nothing transpired between him and the subordinate.  He acknowledged he understands any actions by a noncommissioned officer towards a subordinate must remain strictly professional. 

5.  The applicant states in January 1997 he was processed for a bar to reenlistment as a result of the UCMJ action.  He also states he has matured, grown and provided excellent supervisory skills to both male and female subordinates.  He notes he has furthered his education and excelled in the civilian sector.
6.  The applicant provides a copy of his 1997 DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his January 1996 local bar to reenlistment, three character references, a 1991, 1992 and 1993 Army Achievement Medal, a 1995 and 1996 Army Commendation Medal, and a 1994 Academic Evaluation Report from the Fort Stewart NCO Academy. 

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.  Records available to the Board indicate the applicant enlisted as a Regular Army (RA) Soldier on 8 November 1989.  He was a solid performer as evidenced by his personal decorations and evaluation reports.  By December 1995 he had been promoted to pay grade E-6.

3.  Although the applicant did not provide a copy of his UCMJ action, his January 1997 local bar to reenlistment indicates the applicant received a summarized Article 15 for violation of Article 80 of the UCMJ for “Attempts of Maltreatment of a Subordinate.”  His punishment included 7 days of extra duty.

4.  The applicant indicated during the processing of his local bar to reenlistment that he was submitting a statement in his own behalf.  Although he provided a copy of the bar to reenlistment, a copy of his statement was not included with the documents that were provided in support of his request.  His local bar to reenlistment action is not in the applicant’s Official Military Personnel File.

5.  On 9 March 1997, the applicant was involuntarily released from active duty at the completion of required active service.  His DD Form 214 indicates he was assigned a Separation Program Designator (SPD) code of “LBK” and an 
RE code of 3.  He was credited with completing 7 years, 4 months, and 2 days of active Federal service and he received $6,666.93 in involuntary separation pay.

6.  The statements submitted by the applicant as character references were originally provided in response to statements solicited as part of the applicant’s attempt to enlist in the Army in October 2009.  The statements all note the applicant was an excellent employee and good leader.

7.  References:

	a.  Article 80 of the UCMJ states the elements of “attempt" includes the following:

   (1)  the accused committed a certain overt act; 
(2)  the act was done with the specific intent to commit a certain offense under the code; 
(3) the act amounted to more than mere preparation; and 
(4) the act apparently tended to effect the commission of the intended offense. 

   b.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of this regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  An RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation.

   c.  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 notes that an SPD code of “LBK” is the appropriate code when enlisted Soldiers are being involuntarily discharged upon completion of their required active service because they are ineligible for, barred from, or otherwise denied reenlistment at the time of separation.
   
   d.  Additionally, the SPD/RE Code Cross Reference Table establishes RE codes to be assigned for each SPD code.  This table states that when the SPD is "LBK” the RE code will be 3.  The table also states that the RE code of 3 will be utilized when the Soldier’s record indicates for the current enlistment period the Soldier is ineligible for or was otherwise denied immediate reenlistment.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's SPD code of LBK indicates the applicant was involuntarily released from active duty because he was not eligible for immediate reenlistment at the conclusion of his initial enlistment contract based on a local bar to reenlistment.  As such, the RE code of 3 was an appropriately assigned RE code.

2.  While the applicant maintains his separation for a single infraction is inequitable and should not warrant an RE code of 3, the fact remains that Soldiers separated with a local bar to reenlistment in place are assigned an 
RE code of 3.  The applicant has not shown any error or injustice in the basis for his RE code.  Although all the facts and circumstance of the applicant’s actions which led to his nonjudicial punishment and subsequent bar to reenlistment are not in the available records, it appears his transgression with his subordinate may have been more than a mere innocent kiss on the cheek during a dance.  The bar to reenlistment notes the applicant was punished for “attempts of maltreatment of a subordinate” which members of his chain of command felt was severe enough to warrant the harshness of a bar to reenlistment.

3.  The fact the applicant now contends he has matured and that his supporters think he is a good leader does not serve as a basis to change a properly assigned RE code.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100007066



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ABCMR Record of Proceedings (cont)                                         AR20100007066



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