IN THE CASE OF:	  

		BOARD DATE:	    18 October 2011

		DOCKET NUMBER:  AR20110006062 


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 an upgrade of his reentry eligibility (RE) code from 4 to at least a 3 in order to make him eligible for reentry into the active duty Army.

2.  He states, in effect, that he signed a DA Form 4991-R (Declination of Continued Service Statement) which stipulated that following separation he would be prohibited to apply for reentry into the Active Army for a period of at least 93 days if separated at his normal expiration term of service (ETS) date, and at least 2 years if voluntarily separated before ETS under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 16.  He further states that he has been separated for 5 years and would like to rejoin the Active Army once again.  He attests a recruiter advised him that the RE code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) prohibits him from ever joining any service.  He contends that he was not separated for any type of disciplinary or physical problems and feels that his RE code should be changed.  He concludes that he served honorably for 5 years and feels he could serve again in the same manner.

3.  He provides:

* a DA Form 4991-R
* a DA Form 4187 (Personnel Action)




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 enlisted in the Regular Army (RA) on 9 November 1999.  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

3.  His record contains (and he also provides) a DA Form 4991-R, dated 10 May 2005, which shows, in pertinent part, that:

	a.  having incurred a service-remaining requirement under the provisions of chapter 4, Army Regulation 601-280 (Army Retention Program) as a result of assignment to Drill Sergeant School, he was advised that in order to comply with the operational commitment he must have a minimum of 7 months remaining to his ETS.

	b.  following separation he would be prohibited to apply for reentry into the Active Army for a period of at least 93 days if separated at his normal ETS date, and at least 2 years if voluntarily separated before ETS under the provisions of Army Regulation 635-200, paragraph 16.

	c.  he was eligible to request voluntary separation under the provisions of Army Regulation 635-200, paragraph 16.

4.  His record contains (and he also provides) a DA Form 4187, dated 6 June 2005, which shows that following his submission of a DA Form 4991-R, he requested voluntary separation under the provisions of Army Regulation 635-200, paragraph 16 for the purpose of furthering his civilian education.

5.  On 8 July 2005, he was discharged.  His DD Form 214 shows:

* his service was characterized as honorable
* he was discharged under the provisions of Army Regulation 635-200, paragraph 16-4b, with an SPD code of KGH and an RE code of 4
* his narrative reason for separation was "NON-RETENTION ON ACTIVE DUTY"

6.  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 16-4b provides that Regular Army Soldiers serving on a second or subsequent enlistment who refused to take action to meet military service remaining requirements by signing a DA Form 4991-R pursuant to Army Regulation 601-280 may request voluntary separation.  The service of Soldiers separated under this paragraph will be characterized as honorable.

7.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of KGH was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-4b, for Non-Retention on Active Duty.

8.  At the time of the applicant's discharge, the SPD/RE Code Cross Reference Table indicated that an RE code of 3 was the proper code to assign to members separated with an SPD code of KGH for Non-Retention on Active Duty as the result of submitting a DA Form 1991-R.

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

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

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

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.  This includes anyone with a Department of the Army-imposed bar to reenlistment in effect at the time of separation or separated for any reason (except length of service retirement) with 18 or more years of active Federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE code should be upgraded in order to make him eligible for enlistment were carefully considered and found to have merit.

2.  The evidence of record shows he voluntarily requested and was granted separation under the provisions of Army Regulation 635-200, paragraph 16-4b, by reason of Non-Retention on Active Duty as the result of submitting a DA Form 4991-R.  

3.  The evidence also shows that although the applicant was assigned the appropriate SPD code of KGH, he was assigned the incorrect RE code of 4 at the time of his discharge.  Therefore, he is entitled to an upgrade to RE code 3.

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 deleting the current entry in item 26 (Separation Code) of his DD Form 214 and replacing it with the entry "3."



      _______ _   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)                                         AR20110006062





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ABCMR Record of Proceedings (cont)                                         AR20110006062



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