IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130007340 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* item 26 (Separation Code) something other than KDS
* item 27 (Reentry (RE) Code) something other than 3

2.  The applicant states:

	a.  He enlisted in the Regular Army (RA) in June 1996 to serve his country.  He entered through the New York Military Entrance Processing Station (MEPS), Fort Hamilton, NY.  According to the MEPS, Army Regulation 600-9 (The Army Weight Control Program) stated the maximum body fat allowed for his age of 31 was 28 percent (%).  His body fat when he left for basic training (BT) was 27%.

	b.  After arriving at Fort Jackson, SC, for BT, he remained in Headquarters and Headquarters Company (HHC) until about 20 July 1996 as he had been "locked down" by the company commander.  The battalion commander subsequently discovered the mistake on his paperwork.  The battalion commander told him the mistake was the fault of the MEPS and was no fault of his own.

	c.  He is requesting assistance in clearing his character by the correction of his DD Form 214.  During that period, the separation program designator (SPD) code KDS was defined as defective enlistment but has since been designated as breach of contract.  This SPD gives the understanding that he breached his contract which certainly was not the case.  His intent was to serve proudly as other members of his family had served.

3.  The applicant provides his two DD Forms 214.

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 was born on XX April 1965.  In conjunction with his enlistment in the RA the applicant underwent a medical examination on 1 April 1996 at the MEPS at Fort Hamilton, NY.  His records contain a DA Form 5500 (Body Fat Content Worksheet (Male)), dated 1 April 1996, wherein it shows for his age group he was authorized a maximum body fat of 28%, his body fat was 27.71%, and he was in compliance with Army standards.  He was found qualified for military service.

3.  Having had prior active and Reserve service, the applicant enlisted in the RA on 5 June 1996 at the MEPS at Fort Hamilton, NY.  His records contain a DA Form 5500 completed at the MEPS, dated 5 June 1996, wherein it shows for his age group he was authorized a maximum body fat of 28%, his body fat was 27.60%, and he was in compliance with Army standards.

4.  On 5 June 1996, he was assigned to HHC, 120th Adjutant General Reception Battalion, Fort Jackson, SC.

5.  On 22 July 1996, the U.S. Army Recruiting Command, Fort Jackson, SC, liaison recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 7-16 by reason of defective enlistment.  The liaison stated the applicant was erroneously weighed in at the MEPS using Army Regulation 40-501 (Standards of Medical Fitness) standards.  As he was a prior-service Soldier, he should have been enlisted under the body fat standards of Army Regulation 600-9.  This was no fault of the applicant.

6.  On 23 July 1996, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 7-16 by reason of a defective enlistment contract.  She stated he had been defectively enlisted in the RA due to the wrong Army regulation being used for his weigh-in.  She further stated she was recommending he receive an uncharacterized (or entry-level) separation.

7.  On 23 July 1996, he acknowledged receipt of the notification of the separation action that was being initiated against him for defective enlistment and declined to seek legal counsel.  He acknowledged he understood the procedures and rights that were available to him and further acknowledged he understood she would be receiving an uncharacterized discharge.  He elected not to submit a statement in his own behalf.

8.  The separation authority subsequently approved the applicant's discharge action under the provisions of Army Regulation 635-200, chapter 7 for defective enlistment with an uncharacterized separation.  On 29 July 1996, he was discharged accordingly.

9.  The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, chapter 7, section IV, by reason of defective enlistment agreement with an uncharacterized character of service.  He completed 1 month and 25 days of creditable active service during this period of service.

10.  Item 26 of this DD Form 214 contains SPD code KDS and item 27 contains RE Code 3.

11.  Army Regulation 600-9, in effect at the time, prescribed the Army height and weight standards for Soldiers and the maximum body fat percentages authorized.  It stated male Soldiers in the age group of 28 to 39 were authorized a maximum of 24% body fat.

12.  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 version of the regulation in effect at the time, and the current version of this regulation, states the SPD code of KDS is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 7, section IV, by reason defective enlistment agreement.  The SPD/RE Code Cross Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of KDS.

13.  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 U.S. Army Reserve.  Table 3-1 shows the RE codes and states in pertinent part:

	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.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged on 29 July 1996 under the provisions of Army Regulation 635-200, chapter 7, section IV, by reason of defective enlistment agreement with an SPD code of KDS.  This is the proper SPD Code used when a Soldier is separated for defective enlistment agreement.  Based on his separation under this provision, he was appropriately assigned an RE code of 3 at the time of his discharge.  An RE code of 3 is the correct code for Soldiers separated by reason of defective enlistment agreement.

2.  The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  There are no provisions to change entries on the DD Form 214 when regulations may have changed after the release from active duty.  Regardless, the current regulation also stipulates the SPD Code of KDS and RE code of 3 are the proper codes for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 7, section IV.  These codes are based on regulatory guidance and are not meant to assign blame for a defective enlistment agreement to the member.

3.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20130007340





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ABCMR Record of Proceedings (cont)                                         AR20130007340



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