MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002073573

         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
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Mevlin H. Meyer		Chairperson
Mr. Eric N. Anderson		Member
Mr. John T. Meixell		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: That the type of separation; the separation authority; and the narrative reason for separation currently reflected on her Certificate of Release or Discharge (DD Form 214) be changed. She also requests reconsideration of her request to have her reentry eligibility (RE) code changed from RE-3 to RE-1.

APPLICANT STATES: In effect, that she noticed in the Board’s prior decision it was stated that she did not complete her tour on active duty. She states that, from her understanding she completed her tour of duty when she reenlisted in the Army for an additional 2 years and the expiration of her term of service (ETS) changed to 1 October 1999. She further states that the type of separation shown on her DD Form 214 is “Released from Active Duty” and the narrative reason for separation is shown as “Non-Retention on Active duty. She concludes by stating that she believes that she should be given the correct separation code and not be punished because she signed a Declination of Continued Service Statement (DCSS). In support of her application she submits copies of documents currently maintained in her Official Military Personnel File (the same documents that were submitted with her earlier application to this Board).

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

On 15 June 1993, she enlisted in the United States Army Reserve (USAR) for 8 years, in the pay grade of E-1, in the Delayed Entry Program, with the understanding that she would be ordered to active duty as a reservist by 23 September 1993. Therefore, on 23 September 1993, she enlisted in the Army for 4 years in the pay grade of E-1. She successfully completed her training as an administrative specialist.

On 2 October 1997, she reenlisted in the Army for 2 years. At the time of her reenlistment she had completed 4 years and 9 days of total active service.

On 17 July 1998, the applicant signed a DCSS, which indicated that she understood that she had a service remaining requirement under the provisions of Army Regulation 601-280, chapter 4 and that she must have a minimum of 12 months remaining to ETS as of November 1998. She also indicated that she understood that she would be prohibited from applying for reentry into the active Army for a period of at least 93 days, if she was separated at her normal ETS.

The applicant was released from active duty upon her ETS for non-retention on active duty and she was transferred to the to the USAR Control Group (Reinforcement) to complete her Reserve obligation. She had completed 6 years and 9 days of total active service and the DD Form 214 that she was furnished shows that the separation authority as Army Regulation 635-200, paragraph
16-5B. She was assigned an RE code of RE-3 and a separation code of MGH (voluntary transfer or release from active duty due to non-retention on active duty under the provisions of Army Regulation 635-200, paragraph 16-5B or 16-5C).

On 17 July 2001, this Board denied the applicant’s request for an RE code change. However, during the review of her appeal the Board noted that the separation authority was incorrectly reflected on her DD Form 214. Therefore, on 21 August 2001, as a result of action by the Board, her separation authority was changed from Army Regulation 635-200, paragraph 16-5B to Army Regulation 635-200, paragraph 16-5C.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-5C pertains to soldiers who decline to meet service remaining requirements and who have signed a DCSS. It states, in pertinent part that soldiers with a locally imposed bar to reenlistment or who have signed a DCSS, the criteria in chapter 1, Section VIII will govern whether the soldier is released from active duty, with transfer to (in this case) the USAR or be discharged.

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 USAR. 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 not qualified for continued Army Service, but the disqualification is waivable. Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of Army Regulation 601-210, chapter 4.

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 actions by the Army in this case were proper and there is no doubt to be resolved in favor of the applicant.

2. The Board has noted her contentions; however, when she signed the DCSS she acknowledged that she understood that she was prohibited from reentry in the Army for at least a period of 93 days. She was properly assigned an RE code that reflects that she was ineligible for reentry in the Army without a waiver.
3. As stated in the decision previously rendered by the Board, enlistment criteria does change and since an individual has a right to apply for a waiver, the applicant should periodically visit her local recruiting station to determine if she should apply for a waiver if she desires to enlist. However, her DD Form 214 is correct as currently reflected as she was not eligible for reentry in the Army at the time that she was released from active duty.

4. The applicant made a conscious decision not to extend her period on active duty so that she could meet her service remaining requirement. As a result, she was not discharged. She was released from active duty and transferred to the USAR Control Group (Reinforcement) to complete her USAR obligation. She was assigned a separation code that indicates that she was voluntarily transferred or released from active duty due to non-retention on active duty under the provisions of Army Regulation 635-200, paragraph 16-5B or 16-5C. Therefore, the type of separation and the narrative reason for separation currently reflected on the correction of her DD Form 214 are correct.

5. The applicant contention that the Board’s prior decision states that she did not complete her tour on active duty is unsupported by the evidence of record. The Board’s prior decision makes no reference as to whether or not she completed her tour on active duty. Additionally, item number 18 on her DD Form 214 (Remarks) properly shows that she completed her first full term of service.

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

___mm __ __ena___ ___jm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073573
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/11/05
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2. 190	110.0100
3.
4.
5.
6.