BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005313


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, in effect, correction of her reenlistment (RE) code, from RE-3 to an unspecified RE code.

2.  The applicant states the ramifications of an RE-3 separation were not explained to her.  Had they been explained, she would have sought a correction of her RE code years ago.  

3.  The applicant provides her DD Form 214 (Report of Separation 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.  On 12 July 1974, the applicant enlisted in the Regular Army.
3.  Part IV (Dependency Statement) of her DA Form 3286 (Statements for Enlistment), dated 11 July 1974, shows she listed her husband and daughter as dependents at the time of her enlistment.

4.  On 8 October 1974, she requested discharge from the Army due to erroneous enlistment.  In her request, she stated her recruiter advised her that she could not enlist with two dependent children, without a waiver, and she should only list one child if she wanted to enlist without delay.  She enlisted, claiming her husband and daughter as her dependents; consequently, she was unable to claim her son as her dependent.  Additionally, she cited issues with caring for her two dependent children.

5.  Contained within her record, included as supporting documentation and attached to her request for discharge, were State of Florida Certificates of Live Birth for her daughter and son.  These documents show her daughter and son were 2 and 3 years old, respectively.

6.  On 8 October 1974, her immediate commander recommended approval of her request for discharge due to erroneous enlistment.

7.  On or about 11 February 1975, her request for discharge was approved.

8.  On 21 February 1975, she was discharged accordingly.  The DD Form 214 she was issued shows she was honorably discharged in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph   5-31, and assigned special program designator (SPD) code JFC.  Her assigned RE code was 3.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, in pertinent part, provided for a discharge based upon erroneous enlistment.  When it was discovered that an individual's enlistment was erroneous because of failure to meet the qualifications for enlistment, the unit commander was required to initiate action to obtain authority to retain the member or to discharge or release the member from active duty, as appropriate, on the basis of erroneous enlistment.  In cases where separation was directed, paragraph 5-31 was to be cited as the authority.  The appropriate SPD was JFC.

10.  Army Regulation 601-210 (Qualifications and Procedures for Processing Applicants for Enlistment and Reenlistment in the Regular Army), in effect at the time, prescribed eligibility criteria, policies, and procedures for the enlistment of persons, with or without prior service, into the Regular Army.

   a. Paragraph 8a (Dependent Criteria for Enlistment or Reenlistment – General Limitations) stipulated that enlistees from civilian life, without prior service, could not have had any dependents at the time of enlistment (later amended to no more than one dependent child under the age of 18). 

   b. Paragraph 10 (Classes Ineligible to Enlist or Reenlist – No Waivers Granted), subparagraph M (Women), stipulated that women of the following classes were ineligible for enlistment or reenlistment:

* married, unless they had prior service 
* women (with or without prior service) applying from civilian life who have any legal or other responsibility for the custody, control, care, maintenance or support of a child, step-child, or foster child under     18 years of age

These non-waivable disqualifications were later amended to allow women applicants to be married, with legal or other responsibility for the custody, control, care, maintenance or support of a single child, step-child, or foster child under     18 years of age (waivable).

11.  Army Regulation 635-5-1 (SPD Codes) in effect at the time, provided the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFC was the appropriate code for an individual being separated due to erroneous enlistment.  As of 2 October 1989 (the earliest available cross reference table), the SPD/RE Code Cross Reference Table established the appropriate RE code for JFC as either RE-3 (Ineligible for enlistment without waiver) or RE-4 (Ineligible for enlistment).  If the individual was barred to reenlistment by the Department of the Army or could not meet the citizenship requirements for reenlistment, a RE-4 was entered on the DD Form 214.  Otherwise, an RE-3 was entered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her DD Form 214 should be corrected to upgrade her RE code.   

2.  The evidence of record shows she enlisted with two children under the age of 18, despite being ineligible for enlistment without an approved waiver.  In seeking discharge from the Army, she brought this issue to the attention of her chain of command, resulting in her discharge for erroneous entry.  Her DD Form 214 shows she was discharged due to an erroneous enlistment.  Her characterization of service was honorable and RE-3 was assigned.  There is no available evidence showing that these entries are in error or that her discharge was unjust.
3.  She has failed to submit evidence that shows her RE code is in error of unjust.  Absent such evidence, there is an insufficient basis for granting 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)                                         AR20100026771



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005313



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1