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Depending on what his "RE" code stated on his DD-214, he may have received an:
RE-2 = required only a local waiver (Recruiting Command) to reenlist;
RE-3 = required a HQDA waiver to reenlist;
RE-4 = no waiver authorized. May never reenlist. Ever.
Start with the last -- the RE-4 -- reenlistment eligibility.
If he enlisted in the face of an RE-4, then it was a fraudulent enlistment.
Void from the beginning, as well as a federal crime. But mother Army is
very good these days in researching prior enlistments thanks to automation,
so I doubt RE-4 applied.
If he enlisted after receiving the appropriate waiver for an RE-2 or RE-3
classification, no problems.
If he enlisted in the face of an RE-2 or RE-3 reenlistment eligibility without
obtaining the appropriate waiver, it is a fraudulent enlistment, but with this twist:
The Army can approve a retroactive waiver IF the waiver could have been granted
at the time of his enlistment. The choice belongs to the Army, not the soldier.
STORY TIME:
I actually had this situation in Korea in 1974.
My company clerk had grown up in an Amish or Mennonite family, (one of those
conservative religions where the women wear long sleeve dresses and bonnets;
and the men wear suspenders and straw hats.)
For some reason, he decided to serve his country and enlist during the Viet Nam
war. He didn't make it out of basic training. There were men using foul
language, using the Lord's name as a curse word, reading pornographic
magazines. Men were walking around the barracks naked (and up until the day
he enlisted he had never seen another person naked -- male or female -- not
even his brothers.) The toilets had no dividers, just a row of toilet bowls in a row
(ala Full Metal Jacket). He freaked out, and received an uncharacterized "Trainee
Discharge" with an code of either RE-2 or RE-3.
A few years later, having matured and experienced some more of the worldly life,
he wanted to make good on his prior effort to serve his country, so he reenlisted
without disclosing his first enlistment and discharge, and without obtaining the
required waiver. This time he did fine, graduated basic, AIT, even made some
rank. It was when he was required to get a security clearance that his prior
enlistment was discovered. He admitted everything. What to do?
As the JAG informed us, we -- the command -- could request a retroactive waiver
because the regulations in effect at the time of his first discharge would
have allowed the soldier to receive a waiver. We filed the appropriate paperwork
(the soldier was an excellent company clerk) and the retroactive waiver was
granted.
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