MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002067937

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Thomas Lanyi		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 the Board correct two of his DD Forms 214. On his DD Form 214 (Report of Separation From Active Duty) for the period ending 5 July 1979, he requests that item 15 (Date Entered Active Duty This Period) be corrected to read "76-09-15" vice "76-09-20." On his DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period ending 30 June 1995, requests that item 19 (Nearest Relative) be corrected to read the name of his current wife, not his ex-wife [then his wife]; and that item 27 (Reentry Code) be changed to an RE (Reentry Eligibility) code of RE-1 or 2 vice RE-4R.

APPLICANT STATES: In effect, that his entrance date on active duty should be 15 September 1976; that his reentry code should be either RE-1 or 2 in order for him to reenlist in the Reserves or to get a job with the Department of Defense; and that his nearest relative information is wrong and should be corrected to reflect his current wife's name.

In support of his application the applicant submitted: a copy of his marriage license showing that he remarried on 2 December 2000; DA Form 2A (Personnel Qualification Record) showing his PEBD (Pay Entry Basic Date) as "76-09-15" and his BASD (Basic Active Service Date) as "76-09-20;" and his DD Form 214's for 5 July 1979 and 30 June 1995.

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

He entered active duty on 20 September 1976 and was honorably separated on 5 July 1979 for the purpose of immediate reenlistment. His DD Form 214 for this period of service shows, in item 15, that he entered active duty on "76-09-20." His DD Form 214 for this period of service credits him with 2 years, 9 months, and 16 days of active military service and 5 days of inactive service. These 5 days of inactive military service are presumed to be time served in the Delayed Entry/Enlistment Program (DEP) in a nonpay status.

Reenlisting on 6 July 1979, the applicant served honorably until he was selected for early retirement as provided by section 4403, Public Law 102-484, National Defense Authorization Act for Fiscal Year 1993. He was separated on 30 June 1995 under the provisions of chapter 12, Army Regulation 635-200 by reason of voluntary early retirement with an honorable character of service. His DD Form 214 for this period of service shows: in item 25 (Separation Authority) "AR 635-200, CHAP 12;" in item 26 (Separation Code) "RBE;" in item 27 (Reentry Code) "4R;" and in item 28 (Narrative Reason for Separation) "VOLUNTARY EARLY RETIREMENT."

At the time of his retirement, the applicant was married to his first wife; her name appears in item 19b (Nearest Relative) on the applicant's DD Form 214.

Public Law 102-484, National Defense Authorization Act for FY 1993, provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces. Subsection 4403(f) of the Act directs the use of a subaccount within the budget activities in the Active, Reserve and Guard Military Personnel Appropriations for retirement payments to members participating in the Temporary Early Retirement Authority (TERA) Program. The National Defense Authorization Act for 1994, Public Law 103-160 extended the use of the TERA Program through the end of FY 1999.

Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents. It prescribes the separation document that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army and establishes standardized policy for preparing and distributing the DD Form 214. This regulation states that the soldier’s initial enlistment contract, or any approved change by Enlisted Records and Evaluation Center (EREC), is the source of the data placed in item 15 (Date Entered Active Duty This Period). It also states that item 19b will contain the name and address of a relative. Army Regulation 601-210 governs entries in item 27.

Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on DD Form 214. Soldiers separated by reason of voluntary early retirement are separated under chapter 12, AR 635-200, with an SPD code of RBE and an RE code of RE-4R.

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 United States Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes. RE-4R applies to persons separated from their last period of service by reason of voluntary early retirement and makes them ineligible to reenlist.

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. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the

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records were created. In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.

2. The applicant's DA Form 2A clearly states that he initially entered on active duty on 20 September 1976. This date is correctly reflected on the applicant's first DD Form 214. The date of 15 September 1976 is shown on the applicant's DA Form 2A as his PEBD. This date is used for pay purposes to determine the anniversary date for pay increases.

3. The applicant's first DD Form 214 also shows that the applicant has 5 days of inactive service. Based upon these 5 days of inactive service, it is presumed that the applicant enlisted in the DEP on 15 September 1976 and entered active duty on 20 September 1976. These 5 days of inactive service are not creditable toward active duty time. Therefore, 20 September 1976 is correctly shown as the appropriate date for the applicant's entry on active duty.

4. The applicant has not shown that his nearest relative, as it appears on his DD Form 214, is incorrect. The evidence of record shows the applicant was married to the woman listed as his nearest relative on his 1995 DD Form 214 at the time of his retirement from the Army. That he remarried 5 years after he was retired from the Army does not invalidate that entry on his DD Form 214.

5. The applicant also has not shown that his RE code is wrong on his second DD Form 214. The evidence of record indicates that RE-4R is the correct RE code for soldiers discharged with a SPD code of "RBE."

6. 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.

7. 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

__inw___ __aao___ __tl____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067937
SUFFIX
RECON
DATE BOARDED	20020827
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19950630
DISCHARGE AUTHORITY	AR 635-200, chapter 12
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	112.0100
2.
3.
4.
5.
6.