IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004285 


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 reentry (RE) code be changed to RE-1 from RE-3. 

2.  The applicant states he is requesting his RE-3 code be changed because he is ready to reenter the Army and this RE code prevents him from doing so.  

3.  The applicant provides no documentary evidence 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 entered active duty in the Regular Army on 16 November 1999, and was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistics Specialist).  

3.  On 5 June 2002, court-martial charges were preferred against the applicant for violating the following Articles of the Uniform Code of Military Justice (UCMJ) by committing the offenses indicated:

   a. Article 86 (8 specifications), by failing to go at the time prescribed to his appointed place of duty on eight separate occasions between 9 April and 15 May 2002; 

   b. Article 90, by willfully disobeying the lawful command of a commissioned officer on 17 May 2002;

   c. Article 91 (4 specifications) by willfully disobeying lawful commands of  noncommissioned officers (NCOs) on four separate occasions between 8 April and 15 May 2002;

d. Article 92, by violating a general regulation on 17 May 2002; and 

   e. Article 107, by signing an official document with the intent to deceive on 16 May 2002. 

4.  On 5 June 2002, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense. Further, the applicant indicated that he understood that he could receive an under other than honorable conditions (UOTHC) discharge, and that receiving this type of discharge would have a significant effect on eligibility for veteran’s benefits. 

5.  On 18 June 2002, the separation authority approved the applicant’s request for discharge and directed the applicant receive a UOTHC discharge.  

6.  On 28 June 2002, the applicant was discharged with a UOTHC discharge after completing 2 years, 7 months, and 13 days of active military service.  Item 25 (Separation Authority) of the original DD Form 214 listed the authority for his separation as chapter 10, Army Regulation 635-200 and Item 26 (Narrative Reason for Separation) listed the reason for his discharge as “in lieu of trial by court-martial.”  Based on the reason for his separation he was assigned the Separation Program Designator (SPD) code of KFS in item 28 (Separation Code) and the RE code 4 in item 27 (Reentry Code).  



7.  On 29 October 2007, the Army Discharge Review Board (ADRB) voted to upgrade the applicant’s discharge to honorable and to change the narrative reason for separation to Secretarial Authority.  The ADRB specified that this action entailed a change of the applicant’s RE code from RE-4 to RE-3.  As a result of the ADRB action, a new DD Form 214 was issued that listed the authority for separation in item 25 as paragraph 5-2, Army Regulation 635-200, and the narrative reason for separation in item 26 as “Secretarial Authority.”  Item 28 lists a new SPD of KFF and item 27 lists the RE code of RE-3.  

8.  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 (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, including RA RE codes.  RE-4 applies to persons who have a non-waivable disqualification and RE-3 applies to persons who have a waivable disqualification.  Chapter 4 states recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers.  

9.  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 the SPD code of KFF is the appropriate code to assign to Soldiers separated under the provisions of paragraph 5-2, Army Regulation 635-200 by reason of “Secretarial Authority.”  The Department of the Army SPD SPD/RE Code Cross Reference Table in effect at the time and the current version stipulate that the Headquarters, Department of the Army directive authorizing the separation will provide the RE code for members being separated by reason of “Secretarial Authority.”  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change his RE code to RE-1 has been carefully considered.  However, there is insufficient evidence to support this claim.  By regulation, the RE code assigned members separated under the provisions of paragraph 5-2, Army Regulation 635-200, by reason of “Secretarial Authority” will be determined by the Headquarters, Department of the Army agency responsible for directing the discharge.  In this case, the ADRB stipulated that their action in upgrading the character and changing the reason for the applicant’s discharge entailed a change of his RE code from RE-4 to RE-3.  



2.  Absent any evidence of error or injustice related to the ADRB RE code action taken in conjunction with the changes to the character of and authority and reason for the applicant’s discharge, there is an insufficient evidentiary basis to support a further change in the applicant’s RE code. 

3.  The applicant is advised that his disqualification is waviable and if he wishes to reenter military service he should contact local recruiting personnel who are responsible for processing 
RE code waivers.   

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)                                         AR20110004285



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ABCMR Record of Proceedings (cont)                                         AR20110004285



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