IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025367 


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 correction of the reentry eligibility (RE) code 4 shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

* his DD Form 214 is incorrect
* the RE code was not discussed with him
* he knew nothing about the RE code he received until recent years
* he decided to end his Army service because he was unjustly given an Article 15 and reduced in rank
* someone came to him and said he could sign a bar [to reenlistment] and get out of the Army, which he did
* he did not know the consequences of an "unjust first sergeant"
* he had just reenlisted in the Army for 4 years
* he received a "cut-off" version of his DD Form 214, he did not get a "long copy" until 1993
* he did not know "these codes" were on his DD Form 214
* he did nothing wrong and he intended to reenter the Army

3.  The applicant provides no additional evidence.

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.  He enlisted in the Regular Army on 30 October 1985 in pay grade E-1.  He successfully completed training as a light wheel vehicle mechanic.  He was promoted through the ranks to pay grade E-5.

3.  Nonjudicial punishment was imposed against the applicant on 8 March 1990 for being incapacitated for the proper performance of duty as a result of wrongful previous overindulgence in intoxicating liquor or drugs.

4.  On 13 March 1990, the applicant was barred for reenlistment for being drunk on duty, for misappropriating a government phone, and for not being at his appointed place of duty.  He was also counseled for:

* misusing a government phone
* associating with subordinates off duty
* missing from his place of duty on four occasions
* writing bad checks

5.  He elected not to appeal his bar to reenlistment.

6.  The applicant's records contain a DA Form 4187 (Personnel Action) which shows that on 15 March 1990 the applicant requested early voluntary separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 16-5 (Early Separation of Personnel Denied Reenlistment).  In his request he stated he understood if his request for separation before his normal expiration term of service were approved, it would be for his convenience.  He also stated he understood that once he was separated he would not be permitted to enlist at a later date.

7.  The appropriate authority approved the applicant's request for early voluntary separation on 16 March 1990.  On 13 April 1990, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph16-5b, due to a locally-imposed bar to reenlistment.

8.  The DD Form 214 he was issued shows he received an RE code 4 and a separation program designator (SPD) code KGF (Locally Imposed Bar to Reenlistment).

9.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that a DD Form 214 will be prepared to reflect an individual's service, as it exists on the date of release from active duty, discharge, or retirement.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD code to be used for these stated reasons.

11.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers separated for cause.  SPD code KGF has a corresponding RE code 3 or 4.

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  It states 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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  

13.  Army Regulation 601-210 provides that RE code 3D applies to persons who were not administratively discharged for cause but had a local bar to reenlistment in effect at discharge or a denied waiver for extension or reenlistment.  Persons assigned RE code 3D are ineligible for reenlistment unless a waiver is granted.  RE code 4 applies to persons who were separated from their last period of service with a non-waivable disqualification.  This includes persons being separated with a Department of the Army bar to reenlistment in effect.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  The applicant had a locally-imposed bar to reenlistment at the time of his discharge.  In accordance with the applicable regulation, he should have been assigned RE code 3D.

3.  In view of the foregoing, his DD Form 214 should be corrected to show he was assigned RE code 3D.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 amending item 27 (Reentry Code) of his DD Form 214 to show RE code 3D instead of RE code 4.




      _______ _   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)                                         AR20100025367





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ABCMR Record of Proceedings (cont)                                         AR20100025367



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