IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010572 


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 a change of his reentry (RE) code to RE-1 or RE-2.

2.  The applicant states:

* after discussions with his company commander he accepted an early out with an honorable discharge
* he was not aware RE code  3 was the result of that acceptance and he would not have chosen to get out under that code

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 enlisted in the Regular Army (RA) on 16 April 1986 for a period of 4 years.  He served as a nuclear medicine specialist and x-ray specialist.  On 
2 April 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 3 April 1989 for a period of 4 years.

3.  On 14 November 1990, nonjudicial punishment was imposed against the applicant for failure to repair and leaving his appointed place of duty without authority.

4.  On 19 August 1992, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair.

5.  On 16 October 1992, a Bar to Reenlistment Certificate was imposed against the applicant.

6.  On 1 December 1992, the applicant voluntarily requested discharge from the service under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 16-5, by reason of inability to overcome locally imposed bar to reenlistment.

7.  On 2 December 1992, the separation authority approved the applicant’s request.

8.  Accordingly, the applicant was honorably discharged on 23 December 1992 under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of a locally imposed bar to reenlistment.  He had served 7 years and 8 days of creditable active service.

9.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, CHAP [Chapter] 16-5B.”  Item 26 (Separation Code) of his DD Form 214 shows the entry "KGF."  Item 27 (Reentry Code) of his DD Form 214 shows the entry "RE-3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "LOCALLY IMPOSED BAR TO REENLISTMENT.”

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that Soldiers who receive Department of the Army imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.  Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

11.  Army Regulation 601-280 (Total Army Retention Program) prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, states the reason for discharge based on separation code “KGF” is “HQDA [Headquarters, Department of the Army] imposed bar to reenlistment; or locally imposed bar to reenlistment” and the regulatory authority is Army Regulation 635-200, paragraph 16-5a or b.

13.  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 processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

* RE-2 applied to persons fully qualified for enlistment who were separated before completing a contracted period of service and whose reenlistment was not contemplated.  This code was not used after 28 February 1995.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

14.  The SPD/RE Code Cross Reference Table, in effect at the time, shows that Soldiers given a separation code of "KGF" will be given RE-3 or RE-4; however, it also states that a Soldier with a local bar to reenlistment (less than 18 years active service) will be given RE-3.  

DISCUSSION AND CONCLUSIONS:

The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, 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)                                         AR20100010572



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ABCMR Record of Proceedings (cont)                                         AR20100010572



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