MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002070224

         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:

Mr. Ted S. Kanamine		Chairperson
Mr. John T.Meixell		Member
Mr. Harry B. Oberg		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 military records be corrected to show that he held the rank of specialist four/E-4 (SPC/E-4) at the time of his separation; and that his reentry (RE) code be changed to one that allows reenlistment.

APPLICANT STATES: In effect, that at the time of his discharge from the Army he held the rank and pay grade of SPC/E-4, not private/E-2 (PV2/E-2) as indicated in his separation document (DD Form 214). In support of his application, he submits the following documents: Personnel Action Request
(DA Form 4187); Record of Proceedings Under Article 15, UCMJ
(DA Form 2627); Leave and Earnings Statement (LES); and his DD Form 214, dated 4 November 2001.

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

The applicant entered the Army on 5 November 1998, and he continuously served on active duty for 3 years, until being honorably separated on
4 November 2001.

The applicant’s record shows that the highest rank he attained while serving on active duty was SPC/E-4, which he was promoted to on 5 November 1999. The record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 19 June 2001, for the wrongful use of marijuana.

The applicant provides a copy of a DA Form 4187 pertaining to his advancement to SPC/E-4, effective 1 July 2000. However, this personnel action request is unsigned and undated, and contains no indication that it was approved by the proper promotion authority. The Board notes that this DA Form 4187 would have been invalid and is irrelevant given the record confirms that he had already been promoted to SPC/E-4 on 5 November 1999, and that he was already serving in that pay grade on the 1 July 2000 effective date listed in this document.

The DA Form 2627 provided by the applicant confirms his acceptance of the
19 June 2001 NJP. It also verifies that the punishment imposed by this action included a reduction to private (E-1). However, that part of the reduction punishment in excess of reduction to private (E-2) was suspended for two months.

The LES provided by the applicant shows that he received pay and allowances in pay grade E-4 for the month of July 2001. However, Orders Number 250-1005, dated 7 September 2001, issued by the 10^th Mountain Division, Fort Drum, New York, authorized his release from active duty (REFRAD) on 4 November 2001, in the rank and pay grade of PV2/E-2.

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The DD Form 214, issued to and authenticated by the applicant on the date of his separation, 4 November 2001, confirms in Item 4 (Rank and Pay Grade), that he held the rank and pay grade of PV2/E-2 at that time. Further, Item 25 (Separation Authority) confirms that he was separated under the provisions of chapter 4, Army Regulation 635-200. Item 26 (Separation Code) confirms that he was assigned a Separation Program Designator (SPD) code of LBK and Item 27 (Reentry Code) verifies he received an RE code of RE-3. Finally,
Item 28 (Narrative Reason for Separation) shows that he was REFRAD by reason of completion of required active service.

Army Regulation 15-185, the regulation that governs the operation of the Board, sets forth the procedures for processing requests to correct military records states, in pertinent part, that the Army Board for Correction of Military Records begins its consideration of each case with the presumption of administrative regularity and the burden of proving error or injustice by a preponderance of the evidence rests with the applicant.

Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. Paragraph 2-4, states in effect, that the active duty grade of rank and pay grade at the time of separation will be entered on the separation document.

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 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-3 applies to persons who are ineligible for continued Army service, but the disqualification is waivable.

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. It states, in pertinent part, that the SPD code of LBK is the appropriate code to assign to soldiers that are REFRAD under the provisions of chapter 4, Army Regulation 635-200, who are ineligible for, barred from, or otherwise denied reenlistment, and who are separated on completion of their required service. Additionally, Table 2-3, SPD/RE Code Cross Reference Table, Army Regulation 635-5 (Separation Documents), establishes the RE code of RE-3 as the proper reentry code to assign to soldiers separated with the SPD code LBK under this authority and for this reason.

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

1. The Board notes the contention of the applicant that his rank at the time of his separation is incorrect and should be corrected to read SPC/E-4. However, it finds insufficient evidence to support this claim.

2. The evidence of record includes a properly constituted separation document that was issued to and authenticated by the applicant with his signature on the date of his REFRAD. This document confirms that he held the rank and pay grade of PV2/E-2 on that date, 4 November 2001. It also verifies that upon his REFRAD, he was assigned a SPD code of LBK and a RE code of RE-3. The Board presumes government regularity in the preparation, verification, and authentication of this document during the separation process.

3. Lacking confirmation that the unsigned and undated DA Form 4187 provided by the applicant, which indicates that he was being advanced to SPC/E-4 on
1 July 2000, or verification that he was properly authorized to receive pay as a SPC/E-4, for the period 1 through 31 August 2001, as indicated in the LES he provided, the Board is compelled to rely on the evidence of record in this case.

4. In view of the fact of this case and lacking evidence to the contrary, the Board must also conclude that the applicant was ineligible for, barred from, or otherwise denied reenlistment at the time of his separation. Therefore, it finds that the
RE code of RE-3 assigned him upon his REFRAD was and still is appropriate. However, he is advised that the RE-3 code represents a waviable disqualification, and if he still desires to pursue reenlistment, he should contact local recruiting officials to determine his eligibility for waiver processing and enlistment.

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 this 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

__TSK__ __JTM__ __HBO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070224
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/11
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.	131.0900
2.
3.
4.
5.
6.