IN THE CASE OF:  

		BOARD DATE:  18 July 2013

		DOCKET NUMBER:  AR20120022651 


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 change of his reentry eligibility (RE) code of 4 to another RE code that will allow him to reenter military service.

2.  The applicant states:

	a.  He is trying to enlist in the U.S. Army Reserve (USAR) in Europe.  He has been out of all the trouble that caused his discharge and he would love the opportunity to serve again, part-time.

	b.  Since his discharge he has been working for the Army as a civilian contractor in Iraq, Afghanistan, and in Europe without any incidents at all.

	c.  His discharge was adjusted to reflect "General, Under Honorable Conditions."

3.  The applicant provides his DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 13 November 1995 and 14 March 1997.

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.  Following over 10 years of prior active service, the applicant enlisted in New York Army National Guard (NYARNG).  On 10 June 1996, he was ordered to active duty in support of Operation Joint Endeavor.  He held military occupational specialty 92Y (Unit Supply Specialist).

3.  In March 1997, the applicant was charged with:
 
* failing to go at the time prescribed to his appointed place of duty on
20 September 1996
* two specifications of wrongfully using cocaine on 21 September,
21 December and 23 December 1996
* two specifications of failing to obey a lawful general regulation on
21 September 1996
* three specifications of willfully disobeying a lawful command of a superior commissioned officer on 24 November, 21 December, and 22 December 1996 
* making a false official statement on 21 September 1996

4.  The applicant's record is void of his separation packet.  However, his record contains a DD Form 214 that shows on 14 March 1997, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, by reason of discharge in lieu of court-martial.  The
DD Form 214 further shows in:

* item 24 (Character of Service) the entry "under other than honorable conditions"
* item 26 (Separation Code) the entry "KFS"
* item 27 (RE Code) the entry "4"

5.  On 5 March 2006, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 9 February 2007, the ADRB, having reviewed his case, determined that relief was warranted.  As a result, his discharge was upgraded to general, under honorable conditions.  However, the ADRB determined there was no basis to change his narration reason for separation.
6.  Army Regulation 635-5-1 (Separation Program Designator (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 KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.

7.  The SPD/RE Code Cross Reference Table, effective:

	a.  1 October 1993 shows members separated with an SPD code of KFS will be assigned an RE-3 code.

	b.  October 1999 shows members separated with an SPD code of KFS will be assigned an RE-4 code.

8.  Army Regulation 635-200 further 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  Table 3-1 included a list of the RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests change of his RE code that would permit him to enlist in the USAR in Europe.  He states that he is now ready to honorably serve his country again.

2.  In accordance with Army regulations in effect at the time, an RE-3 code was appropriate for the authority, SPD, and narrative reason for his separation for the period ending 14 March 1997.  However, the RE code for SPD KFS was not changed until October 1999.  Based on ADRB's upgrade of his discharge he was issued a new DD Form to reflect his new character of discharge.  However, it appears that during the preparation of his new DD Form 214 an incorrect RE-4 code was listed in lieu of the RE-3 code he should have been assigned.

3.  In view of the foregoing, the applicant's DD Form 214 for the period ending
14 March 1997 should be changed to reflect the correct RE code of 3.

4.  The applicant is advised that RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however it does allow for a waiver of disqualification.  Therefore, if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process RE code waivers.

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 from item 27 of his DD Form 214 the current entry and replacing it with the entry RE-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)                                         AR20120001866



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ABCMR Record of Proceedings (cont)                                         AR20120022651



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