MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 December 1998
         DOCKET NUMBER: AC97-05444

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Loren G. Harrell		Director
Mr. Theodore Heartley		Analyst

The following members, a quorum, were present:

Mr. Ernest M. Willcher		Chairperson
Ms. Lana E. McGlynn		Member
Ms. Carol Jo Suiter		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his reentry (RE) code and rank be corrected on his DD Form 214, separation document; and that he be reinstated in the USAR and paid for the time he served despite his earlier discharge from the USAR.

APPLICANT STATES: In effect, that he was treated unfairly during his service in the Regular Army and the USAR; that he was falsely accused of stealing a kevlar helmet, forced to sign a bar to reenlistment, demoted to private first class (E-3) and, received RE code 3C on his DD Form 214. He further states that he was extended 7 days past his expiration of term of service (ETS) due to his son’s ill health at birth; and that for 6 years, he’d been trying to return to the active Army but could not do so because of his RE code which he, later, discovered meant conscientious objector.

He also states that in 1990, he entered the USAR, regained the rank of specialist and reenlisted for a 6 year term of service on 22 March 1992. He further states that in June 1992, he learned that he was discharged from the USAR during May 1992 for not having a physical examination. Also, he was never paid for his service in May 1992 and missed an opportunity for promotion to sergeant (E-5) because he did not attend the primary leadership development course. He added that his dilemma was further compounded by a 2 year struggle with medical bills related to his son’s ill health, his wife’s post partum care, rent, food, all of which resulted in a lost opportunity to buy a house and bankruptcy.

EVIDENCE OF RECORD: The applicant's military records show:

He enlisted in the USAR on 5 June 1984 and entered active duty in the Regular Army on 11 July 1984 for a period of 3 years with a European station of choice option. His active duty ETS was 10 July 1987. His enlistment contract indicated that he incurred an 8 year Army Reserve service obligation and the terminal date of his Reserve service obligation was 4 June 1992.

After completion of his initial training at Fort Leonard Wood, Missouri, he was assigned to duties as an aircraft fire control repairman in Germany on 1 July 1985. On 12 September 1986, he extended his term of enlistment by
7 months in order to accept reassignment to CONUS since he had less than 1 year remaining until his ETS. After his extension, his new ETS was 10 February 1988.

His DA Form 2, personnel qualification record, shows that he was reduced to private first class (E-3) on 28 December 1987. The circumstances concerning his reduction as outlined in a judicial or non judicial proceeding was not available in his records.

An order dated 9 February 1988, contained in his records, shows that his ETS date was changed from 10 February 1988 to 17 February 1988.

His DD Form 214 shows that he was released from active duty and transferred to the USAR Control Group (Reinforcement) because of ETS on 17 February 1988 under the provisions of Army Regulation 635-200, Chapter 4. His active service was honorable. He had completed 3 years, 7 months and 7 days of creditable service with no lost time and RE code 3C applied.

Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel. Chapter 4 applies to the release from active duty of persons having completed their term of active duty service.

RE-3C applies to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

In the processing of this case, an advisory opinion (COPY ATTACHED) was provided by the U.S. Total Army Personnel, Chief, Retention Management Division, which stated, in effect, that changes to RE codes can be made only if issued incorrectly; and that RE code 3C was appropriate in his case because at ETS, he was ineligible for further service due to his reduction to private first class (E-3) on 28 December 1987.

On 30 September 1988, he was reassigned to Company D, 3^rd Battalion, 80^th Infantry Regiment, Fort Story, Virginia, to complete his statutory reserve service obligation.

On 19 September 1989, he was reassigned to the USAR Control Group (Reinforcement) due to his unsatisfactory participation.

On 29 October 1990, he was reassigned to the 88^th Military Police Company, Hampton, Virginia. to complete his statutory reserve service obligation.

On 29 June 1991, he was promoted to specialist (E-4).

On 22 March 1992, he reenlisted in the USAR, troop participation unit (TPU), for a period of 6 years.

His records contain a first endorsement to a request for Reserve Component assignment or attachment dated 25 September 1992 addressed from the Commander 97^th U.S. Army Reserve Command, Fort George G. Meade, Maryland to the Commander, U.S. Army Reserve Command, Fort McPherson, Georgia requesting that the applicant’s enlistment be terminated due to his ETS date of 4 June 1992. The basic correspondence, other endorsements or decision documents are not available in his records.

His records contain an order dated 9 October 1992 showing that he was discharged from the USAR with an Honorable Discharge Certificate on 9 October 1992 under the provisions of Army Regulation 135-178 (N1).

The staff of the Board contacted the USAR Command, Fort McPherson, Georgia and was advised that the code (N1), as shown on the discharge order, is a locally generated code and applies to Chapter 11 of Army Regulation 135-178.

Army Regulation 135-178 pertains to the separation of enlisted personnel in the U.S. Army Reserve. Chapter 11 pertains to the expiration of terms of enlistment or statutorily obligated service and states, in pertinent part, that no soldier may be held beyond the normal expiration of term of service unless expiration of term of service is extended by law.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Despite the absence of specific information concerning his reduction to private first class (E-3), there is nothing in the applicant’s record or in the evidence submitted by him to support his contention that his rank and reentry code is erroneous. Therefore, this Board presumes administrative regularity in the processing of his separation from the Regular Army on 17 February 1988. Other evidence of record does not overcome that presumption.

2. His claim that he was discharged from the USAR in May 1992 and entitled to monetary compensation is not warranted since the evidence of record clearly shows that his USAR discharge occurred on 9 October 1992.

3. The Board also presumes administrative regularity in the processing of his USAR discharge on 9 October 1992 despite the absence of relevant information. Nothing in his records or his detailed explanation provides clear, convincing and compelling evidence to overcome this presumption.

4. The Board found nothing in his records precluding the continuation of his military service. Therefore, in view of his desire to return to Reserve service, he should seek the assistance of his local recruiter to prepare a waiver for waiver and other pertinent reenlistment documents.

5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.