IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002024 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his reentry (RE) code as "1" vice "3" and to show that he did complete his first full term of enlistment.

2.  The applicant states the following:

	a.  He received an Article 15 on 4 February 1996, 1 year past his first reenlistment, for failing to perform a preventative maintenance checks and services (PMCS) on a vehicle.  This was his only disciplinary action since his enlistment on 5 March 1992.  He was disappointed at receiving the Article 15 and was approached many times by the reenlistment noncommissioned officer (NCO) regarding a bar to reenlistment.  He was told by the NCO that he knew the applicant wanted to go to school and that signing the bar to reenlistment would enable him an early out.  Regrettably, he agreed to sign it.

	b.  No one ever counseled him that he could recover from the disciplinary action and could continue to have a successful career.  He was encouraged to sign the bar to reenlistment instead of being encouraged to learn from his mistake and stay in the Army.  He was advised that his RE code would be 3 and his separation code would reflect completing his initial enlistment since he was on his second enlistment and was volunteering for an early out for college.

3.  The applicant provides the following:

* DD Form 214
* DA Form 2327 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice))
* DA Form 4126-R (Bar to Reenlistment Certificate)
* Reenlistment Packet
* DD Form 256A (Honorable Discharge Certificate)
* Award orders
* Two certificates 
* Two diplomas

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.  Having had prior service in the Army National Guard, the applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 5 March 1992 and he held military occupational specialty (MOS) 82C (Field Artillery Surveyor) and MOS 11B (Infantryman).

3.  On 10 August 1994, he reenlisted in the RA for 3 years under the Army service school option for MOS 11B.  He completed the 11B course at Fort Benning, GA, and on 20 March 1995 he was assigned to Fort Campbell, KY.

4.  On 4 February 1996, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for being derelict in the performance of his duties by failing to perform PMCS on his assigned vehicle.  

5.  A DA Form 4126-R, dated 14 March 1996, shows a Bar to Reenlistment Certificate was placed against him due to his NJP.  His immediate commander stated "In today's shrinking Army we can only retain highly qualified Soldiers.  Therefore, it is recommended that this bar [to reenlistment] be approved."  

6.  On 15 March 1996, the applicant signed this form acknowledging he had been furnished a copy of the commander's recommendation.  On 15 March 1996, the approving authority approved the Bar to Reenlistment Certificate.  On 15 March 1996, the applicant signed this form acknowledging he was notified that the bar to reenlistment had been approved.  He further elected not to appeal the bar to reenlistment.

7.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his official records contain a DA Form 4187 (Personnel Action), dated 13 March 1996, wherein the applicant requested separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 16-5.  On 13 March 1996, his immediate commander recommended approval of his request for separation.  The DA Form 4187 indicated that the Bar to Reenlistment Certificate was attached.  It is not clear why the dates on the DA Form 4187 precede the dates on the DA Form 4126-R.

8.  On 15 March 1996, his senior commander recommended approval of the applicant's request for separation under the provisions of Army Regulation 
635-200, paragraph 16-5.  

9.  His records do not contain the endorsement showing the date the separation authority approved his request for a discharge.  However, the DD Form 214 he was issued confirms he was honorably discharged on 10 April 1996 under the provisions of Army Regulation 635-200, paragraph 16-5b, by reason of non-retention on active duty.  He completed 4 years, 1 month, and 6 days of creditable active service.

10.  The DD Form 214 also shows the following in:

* Item 18 (Remarks) the entries "Immediate Reenlistments this Period - 19920305-19940809" and "Member Has Not Completed First Full Term of Service"
* Item 26 (Separation Code) the entry "KGH"
* Item 27 (RE Code) the entry "3"

11.  On 6 May 2011, The Army Discharge Review Board (ADRB) denied the applicant's request to change his RE code, Separation Program Designator (SPD) code, and narrative reason for separation and determined he was properly and equitably discharged.  The ADRB also stated his request to change the remarks section of his DD Form 214 fell under the purview of the ABCMR.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 16-5b of the regulation in effect at the time pertained to locally imposed bars to reenlistment.  It stated Soldiers who perceive that they will be unable to overcome a locally imposed bar to reenlistment may request immediate separation.  The Soldier's request will be submitted on a DA Form 4187.

13.  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 regulation in effect at the time identified the SPD code of "KGH" as the appropriate code to assign Soldiers voluntarily separated under the provisions of Army Regulation 635-200, paragraph 16-5b.

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The SPD/RE Code Cross Reference Table in effect at the time of the applicant's separation established an RE code of "3" is the proper RE code to assign Soldiers separated with an SPD code of "KGH."

15.  Army Regulation 635-5 (Separation Documents) states, in pertinent part, that in item 18 of the DD Form 214 for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “Immediate Reenlistments this Period” (specify dates) and the mandatory entry: “Soldier (Has) (Has Not) Completed First Full Term of Service.”  Routinely, a RA Soldier should not be considered to have completed the first full term of enlistment if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the enlistment contract.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant initially enlisted in the RA for 3 years.  On 10 August 1994, he reenlisted in the RA for 3 additional years.  This reenlistment changed his first term of service to the period from 5 March 1992 to 9 August 1994.  He was discharged on 10 April 1996; therefore he is entitled to correction of his DD Form 214 to show that he had completed his first full term of service.

2.  With respect to his request for correction of his RE code, the evidence of record shows he voluntarily requested separation due to the bar to reenlistment.  He was separated under the provisions of Army Regulation 635-200, paragraph 16-5b with an SPD of KGH.  Based on this, he was appropriately assigned an RE code of "3" at the time of his discharge.  RE code "3" is the correct code for Soldiers separated by reason of non-retention on active duty.  Therefore, he is not entitled to the requested relief.
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 from item 18 of his DD Form 214 the entry "Member has not completed first full term of service" and replacing it with "Member has completed first full term of service."

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 the correction of his RE code.  



      _______ _   _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)                                         AR20110002024





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002024



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1