PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 04 FEBRUARY 2003
         DOCKET NUMBER: AR2002074129


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Ronald J. Weaver		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his separation (SPD) code on his 8 May 1993 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from “LBK” to “MBK.”

3. The applicant states that he had no adverse actions taken against him during his military service. He was not aware of a problem until he applied for an Active Guard/Reserve (AGR) position with the Alabama Army National Guard. He was informed that the “LBK” SPD code meant that he was involuntarily separated because of adverse actions taken against him while on active duty. He was also informed that he could not be hired for the position unless his SPD code was corrected.

4. The applicant’s military records show that he enlisted in the Alabama Army National Guard for 8 years on 21 May 1987. He was on active duty for training from 1 October 1987 through 15 March 1988, when he was released and transferred to his National Guard unit in Enterprise, Alabama. His separation code on that DD Form 214 is shown as “LBK.”

5. On 8 February 1989 the applicant was discharged from the Alabama Army National Guard and as a Reserve of the Army. The following day he enlisted in the Regular Army for four years. Except for his DD Form 214, his military records while on active duty are not available. His DD Form 214 shows that he was released from active duty on 8 May 1993 at Fort Eustis, Virginia, and transferred to the 31^st Support Battalion in Enterprise. His awards include the NCO Professional Development Ribbon, the Overseas Service Ribbon, the Southwest Asia Service Medal, the Army Good Conduct Medal, and two awards each of the Army Commendation Medal and the Army Achievement Medal. He had 4 years and 3 months of service, of which 3 years, 1 month, and 2 days was foreign service. His DD Form 214 shows that his extension of service was at the request and for the convenience of the government. He was separated under the provisions of Army Regulation 635-200, chapter 4, because of his ETS (Expiration of Term of Service). His separation code is shown as “LBK” and his reentry code, “RE-1A.” His DD Form 214 shows that [in accordance with the provisions of Army Regulation 135-91], he still had a Reserve obligation, terminating on 20 May 1995.

6. On 13 January 1995 he entered on active duty for training. He was released from active duty with an Honorable characterization of service on 3 August 1995. His separation code on that DD Form 214 is shown as “MBK.”

7. With his application, he submits a copy of a 1 April 2002 memorandum from the Alabama Army National Guard informing him that his separation code on his 8 May 1993 DD Form 214 indicated that he was involuntarily released from active duty, making him ineligible for entry into the AGR program. He was advised to apply to this Board for relief, requesting that his SPD code be changed to “MBK.” With that memorandum is a copy of an Table 2-1, extracted from Army Regulation 135-18. That table lists nonwaivable disqualifications for entry in the AGR program. A portion of that table, which the applicant has highlighted, shows that involuntarily removal from active duty for cause, to include unsuitability or unfitness, is a nonwaivable disqualifation.

8. He includes a copy of pages from Army Regulation 635-5-1, portions of which he has highlighted, showing SPD codes for voluntary discharge, involuntary release from active duty, and voluntary release from active duty. The version of that regulation, dated 1 December 2000, however, was not in effect at the time of his release from active duty in 1993.

9. Army Regulation 635-5-1, dated 1 October 1982, in effect at the time of his release from active duty for training in 1988 and also at the time of his release from active duty in 1993, prescribes the specific authorities, the reasons for separation of members from active military service, and the separation program designators to be used for those stated reasons. That regulation also provides an explanation of terms, in this case, involuntary release or transfer – the release from active service and transfer to the Army National Guard or Army Reserve, by an established directive, does not require an application or request from the member. The SPD code “LBK” in that regulation indicates that a member was involuntarily released or transferred on his ETS in accordance with the provisions of Army Regulation 635-200, chapter 4.

10. The SPD code “MBK” in that regulation indicates that a member was voluntarily released or transferred on his ETS in accordance with the provisions of Army Regulation 635-100. That regulation, however, pertains to officer separations. That regulation does not provide a SPD code for an enlisted soldier voluntarily released or transferred on his ETS.

11. On 13 August 1993, a revised Army Regulation 635-5-1 was published, which became effective on 1 October of that year. It revised the SPD codes, to include an SPD code of “MBK” for enlisted soldiers who were voluntarily released on their ETS and transferred to the Reserve components to complete a military service obligation. The SPD code, “LBK” remained in effect for involuntary release or transfer of enlisted soldiers on their ETS. That code identified soldiers who were ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

12. Army Regulation 635-210, then in effect, provides a listing of reentry (RE) codes. RE-1A code applies to careerists with over 6 years of service for pay, or over 4 years for pay if separated on or after 15 August 1978. A soldier with a RE-1A code is fully qualified for enlistment.

13. In the processing of this case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1. That office recommended that the applicant be granted relief, and stated that the separation code, “MBK,” should have been entered on the applicant’s DD Form 214. The applicant concurred with the advisory opinion.

CONCLUSIONS:

1. There is no evidence and the applicant has not submitted any, to show that his SPD code of “LBK” on his 1993 DD Form 214 is incorrect. Absent evidence to the contrary, regularity is presumed.

2. Nonetheless, as indicated above, his transfer to the Reserve components was mandated by regulation and also by law, in 1988 as well as in 1993. He still had a military service obligation until May of 1995; consequently, his release from active duty and transfer to either the Army National Guard or the Army Reserve did not require an application or request from the applicant – albeit in 1993 he himself apparently requested transfer to a specific unit, the 31^st Support Battalion. He had to go, in either the Reserves or the National Guard.

3. That regulation also did not provide for a separation code for soldiers voluntarily released from active duty on their ETS; therefore, the code, “LBK,” indicating an involuntary transfer appeared to be the appropriate code entered on his DD Forms 214, both in 1988 and 1993.

4. The applicant was a good solider as evidenced by award of the Army Good Conduct Medal, his four awards for meritorious achievement or service, and his honorable separation from active duty. His 1993 separation code may well have been correct; however, to deny him entry into the AGR program, because he was involuntarily removed from active duty “for cause,” as shown by the AGR regulation, appears to be unjust.

5. There was no provision in the 1982 governing regulation for an SPD code of “MBK” for an enlisted soldier when the applicant was separated in May 1993; however, the August 1993 regulation did provide for that SPD code. Consequently, it appears that the intent of the revised policy was to provide an SPD code of “MBK” for enlisted soldiers released from active duty and transferred to the Reserve components. As such, the regulatory change may represent an enhancement of the applicant’s rights, and therefore, relief is warranted as an exception to policy.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That the applicant’s separation code on his 6 May 1993 DD Form 214 be changed from ”LBK” to “MBK.”

BOARD VOTE:

__MHM__ ___CLG_ __RJW__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Melvin H. Meyer_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002074129
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030204
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.