ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 September 2019

	DOCKET NUMBER:  AR20170013818


APPLICANT REQUESTS:  a change to her reenlistment code

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states she had a wrongful termination.  The reenlistment code was not on her discharge paperwork when she got out in 1979 and she did not find out about it until 1991.  This code barred her from federal employment and the employer told her that she could not be considered because of fraudulent entry notated on her DD Form 214 (Report of Separation from Active Duty).  She feels that she was falsely accused, because her family took care of her children all of their lives.  She completed 2 years of college and did not have to lie to get in the Army.  She never hid her children from anyone.   

3.  A review of the applicant’s service record shows:

	a.  She enlisted in the Regular Army on 10 January 1979.

	b.  Between 4 February 1979 and 28 February 1979, the applicant received numerous counseling statements for the following offenses:

* failing to fall out for formation
* disobeying an order
* lack of motivation and respect for peers and her drill sergeant
* not meeting the training standards
* lack of cooperation with her peers

	c.  On 3 March 1979, she accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful order from her superior officer and non-commissioned officer to wit:  failing to leave the day room and go to bed.

	d.  The applicant’s record is void of the commanders’ notification of intent to initiate separation proceedings against her, under the provisions of Army Regulation (AR) 635-200, (Personnel Separations - Enlisted Personnel), Chapter 14, (misconduct and fraudulent entry); however, it does have the applicant’s acknowledgement of receipt of this notification.

	e.  The applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, she understood her rights and acknowledged the following:

* she understood if this discharge was approved she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration
* she understood that she may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* she acknowledged she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she elected to submit a statement on her own behalf

	f.  Between 23 May 1979 and 6 June 1979, the applicant’s chain of command wrote several letters in support of her being retained in the military and several letters were written against her remaining in the military.

	g.  On 25 June 1979, the applicant submitted a sworn statement, rebutting the fraudulent entry accusation made by her commander.

	h.  On 25 June 1979, her commander initiated separation proceedings under the provisions of AR 635-200, Chapter 14, paragraph 14-5, for fraudulent entry. 

	i.  Inconsistent with the chain of command's recommendation, the separation authority approved the commanders request for discharge under the provisions of AR 635-200, chapter 14, section II (fraudulent entry) and directed the issuance of an honorable discharge, a Separation Program Designator (SPD) of JKG, and a reenlistment code of RE-3. 

	j.  Her DD Form 214 shows she was discharged on 15 August 1979, under the provisions of AR 635-200, Chapter 14, fraudulent entry, under honorable conditions.  It also shows she completed 7 months and 6 days of active service with no lost time.  

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation, AR 635-200, Chapter 14 establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined relief was not warranted.  The applicant’s contentions were carefully considered.  Evidence of record shows she was separated for a fraudulent enlistment.  The Board agreed regulatory guidance provides the reentry code RE-3 was the appropriate code, which requires her to obtain a waiver for enlistment.  The Board agreed there was no error or injustice in this case.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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.

REFERENCES:
1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 1-13a (honorable) provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

   b.  Paragraph 1-13b (General) provides that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory.  The member may have had frequent non-judicial punishments but not for serious infractions.  He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions.
   

	c.  Paragraph 14, (Separation for Misconduct) of this regulation establishes policy and prescribes procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent enlistment/reenlistment, conviction by civil court (members who have been initially convicted or adjudged juvenile offenders), desertion and absence without leave, and other acts or patterns of misconduct.

3.  Army Regulation 635-5-1 (Separation Program Designators SPD) states that SPD’s are used to provide statistical accounting of the reasons for which active Army personnel are separated and the authority governing the separation code of KGF (HQDA imposed bar to reenlistment; or locally imposed bar to reenlist is AR 635-200, paragraph 16-5a or b.

4.  Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  The general instructions stated all available records would be used as a basis for preparation of the DD Form 214.  Block 27 (Reenlistment (RE) Code), for the RE Code, AR 601–210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army and U.S. Army Reserves reentry eligibility and provides regulatory guidance on the RE codes.

5.  AR 601-210 (Regular Army (RA) and Reserve Components Enlistment Program) in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States (U.S.) Army Reserve.  Table 3-1 lists the RA RE eligibility 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-2 is no longer used, effective 1995.

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

	d.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.  
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013818


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