MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 October 2001
         DOCKET NUMBER: AR2001059154

         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. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Richard T. Dunbar		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 be changed from RE-3 to RE-1.

APPLICANT STATES: In effect, that the RE-3 code that is listed on his separation document (DD Form 214) is incorrect and should be corrected to show that he received a RE-1 code. He states that his military career is free of non-judicial punishment (NJP) and the RE-3 code listed on his DD Form 214 is a clerical error and was based only on his declining his assignment to Korea in order to be separated from the Army.

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

On 25 March 1988, he initially enlisted in the Army for 4 years and on 13 August 1991 he reenlisted for an additional 3 years. His record shows that the highest rank he attained while serving on active duty was sergeant/E-5 (SGT/E-5) and that during his active duty tenure he received the following awards: Joint Service Commendation Medal; Army Commendation Medal; Army Achievement Medal (1^st OLC); Good Conduct Medal; and National Defense Service Medal.

The record contains a copy of a Department of the Army (DA) Form 4991-R (Declination of Continued Service Statement-DCSS). This document confirms that on 11 January 1994 he was counseled by a senior personnel noncommissioned officer (NCO) in regard to his incurring a service remaining requirement of 13 months under the provisions of chapter 3, Army Regulation 601-280 as a result of his receipt of overseas assignment instructions to Korea.

The DCSS also shows that the applicant was advised by the personnel NCO that his refusal to take the necessary action to meet the service remaining obligation would result in his being placed in a non-promotable status and being assigned a RE-3 code that would prohibit him from enlisting without an approved waiver from DA. In addition, he was informed that signing the DCSS would prohibit him from extending his enlistment or applying for a commissioned officer or warrant officer program.

On 12 April 1994, a career counselor advised the applicant of the various options available to him to satisfy the service remaining requirement and of the effects of his refusal to take action to meet the length of service requirement. After this counseling the applicant again refused to comply with the operational commitment and signed the DCSS. He acknowledged that he had been counseled in regard to the action required by him to satisfy a length of service requirement incident to an operational commitment and on the effects of his refusal to extend his enlistment or reenlist to comply with the commitment.

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The applicant further indicated in the signed DCSS that he understood the effects his refusal would have on his Army career and on any future decision he might make concerning reenlistment or enlistment after separation. His unit commander also signed the DCSS and indicated that he had reviewed and discussed the applicant’s decisions with him and determined the applicant had been properly counseled and still refused to take action to acquire sufficient service to comply with the operational commitment.

On 24 January 1994, the applicant submitted a Personnel Form (DA Form 4187) requesting voluntary separation under the provisions of paragraph 16-5, Army Regulation 635-200 based on his having signed a DCSS. On 27 January 1994, this request was approved by the appropriate authority.

On 28 February 1994, the applicant was honorably discharged after completing a total of 5 years, 11 months, and 6 days of active military service. The DD Form 214 issued to him on the date of his separation confirms that he was assigned a Separation Program Designator (SPD) code of MGH and a RE-3 code.

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 SPD code of MGH was the appropriate code to assign members separating under the provisions of paragraph 16-b or c of Army Regulation 635-200 for non-retention on active duty. In addition, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE-3 as the proper reentry code to assign soldiers separated for this reason.

Pertinent Army regulations provide 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 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 includes a list of armed forces
RE codes, including RA RE codes. RE-1 applies to persons completing their terms of service who are considered fully qualified to reenter the Army and
RE-3 applies to persons not qualified for continued Army service but the disqualification is waivable.

Army Regulation 601-280 prescribes the eligibility criteria and options currently available in the Army Retention Program. Paragraph 3-3 states, in effect, that those individuals who refuse to take action to meet service requirements will be counseled on the effects of their refusal and a statement to the effect that the individual has been counseled and refuses to comply with published instructions will be prepared. It also stipulates, in pertinent part, that the statement will include a statement that the soldier will be classified as ineligible to reenlist for a period of 93 days after discharge and will be placed in a nonpromotable status.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 contains guidance on separating members by reason of non-retention on active duty and states, in pertinent part, that soldiers who have signed a DCSS may request immediate separation.

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. The record confirms that the applicant voluntarily requested separation after signing a DCSS and was assigned a RE-3 code in accordance with applicable regulations. He was properly counseled on the effects of his signing the DCSS and that his refusal to take action to meet the service remaining requirement would result in his being assigned a RE-3 code.

2. In view of the circumstances in this case, the Board finds the RE-3 code was and still is appropriate. It properly reflects the fact that the applicant requires an approved waiver from DA in order to enlist based on the disqualification that resulted from his signing a DCSS. Thus, the Board concludes a change to his RE-3 code is not warranted.

3. 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 this requirement.

4. 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

__MKP___ __KAK__ __RTD__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059154
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/02
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.