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ARMY | BCMR | CY2003 | 2003088835C070403
Original file (2003088835C070403.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 January 2004
         DOCKET NUMBER: AR2003088835


         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
Ms. Rosa M. Chandler Analyst


The following members, a quorum, were present:

Mr. Arthur A. Omartian Chairperson
Mr. Lester Echols Member
Ms. Yolanda Maldonado 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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:


1. The applicant requests that his reentry (RE) code of RE-4 on his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed to RE-1.

2. The applicant states in a letter written to the Board that, prior to serving in the Army, he served in the United States Navy. He believes that an RE-4 code applies to individuals separated as a result of nonjudicial punishment or because of other actions taken against them. He is requesting the change in his RE-code so that he may be allowed to join the United States Army Reserve.

3. The applicant provides in support of his request: two letters, dated 3 October 2001 and 3 March 2003; a DA Form 4991 (Declination of Continued Service Statement); certificates of training; certificates of recognition; Certificates for award of the Army Good Conduct Medal, two Army Achievement Medals, and the Army Commendation Medal; Orders for award of the Driver's Badge; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1. Prior to the period of service under review, the applicant served honorably in the Regular Army (RA) from 25 June 1991-18 June 1998 when he was separated for immediate reenlistment. He was not issued a DD Form 214. On 19 June 1998, while serving as a Staff Sergeant, pay grade E-6, the applicant reenlisted in the RA for 4 years and his previous Military Occupational Specialty (MOS) 31R (Microwave Systems Operator). He had an expiration of term of service (ETS) date of 18 June 2002.

2. On 18 January 2001, the applicant was issued a Noncommissioned Officer Evaluation Report (NCOER) indicating that he was arrested by civilian authorities for striking his spouse. Part IV (Overall Performance and Potential) of the NCOER states that the applicant's off-duty conduct was unbecoming of a noncommissioned officer; that he should not be promoted at this time, and that he should be assigned to a less challenging assignment.

3. The applicant was selected for promotion to Sergeant First Class (SFC/E-7) by the SFC Promotion Selection Board that convened on 30 May 2001.

4. On 3 September 2001, the applicant completed a DA Form 4991-R (Declination of Continued Service Statement) refusing to extend his enlistment for a service remaining requirement (SRR) thereby refusing an overseas assignment. He acknowledged that he had been counseled concerning his

refusal to extend his enlistment to comply with the commitment. He acknowledged that he understood the effects his refusal would have on his Army career if he refused the overseas assignment. He initialed a statement indicating that he understood that he was prohibited (barred) from reenlistment and consideration for promotion or advanced schooling.

5. On 10 September 2001, the United States Total Army Personnel Command (PERSCOM), Alexandria, Virginia notified the applicant that he was being administratively removed from the Promotion Selection List for promotion to SFC based on his declination of continued service.

6. The available records do not contain a voluntary request for separation due to the fact the applicant felt that he could not overcome the imposed bar to reenlistment. However, his DD Form 214 shows that, on 22 March 2002, he was honorably separated from active duty under the provisions of chapter 16-5b, Army Regulation 635-200, for "Non Retention on Active Duty" and assigned a separation code of "KGH" and an RE code of RE-4. He had completed a total of 10 years, 8 months, and 28 days of creditable active military service on the enlistment under review and had completed 2 months of prior active service.

7. Pertinent Army Regulations (AR) 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. AR 601-210 covers eligibility criteria, policies, and procedures for enlisting and processing into the RA and the eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes and RA RE codes.

8. An RE code of RE-4 and a separation code of "KGH" apply to those individuals discharged under the provisions of chapter 16-5b, AR 635-200, as a result of a bar to reenlistment. An RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.

9. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive Department of the Army (DA)-imposed or locally-imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.

DISCUSSION AND CONCLUSIONS:

1. The applicant's DD Form 214 shows that he was separated under the provisions of chapter 16-5b, Army Regulation 635-200, as a result of "Non-Retention on Active Duty," due to a bar to reenlistment. The applicant's voluntary request for separation is not available, however, the Board presumes regularity in the discharge process.

2. Based upon the stated separation authority and narrative reason for separation, the applicant's separation code and RE code are correct.

3. The applicant has provided this Board with no evidence that supports a basis for removal of his current Separation Code or his RE code. He was separated and assigned a separation code and a RE code in accordance with regulations then in effect.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__aao___ ___le___ __ym____ DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



                           Arthur A. Omartian
                  ______________________
                  CHAIRPERSON




INDEX

CASE ID AR2003088835
SUFFIX
RECON
DATE BOARDED 20040127
TYPE OF DISCHARGE (HD)
DATE OF DISCHARGE 20020322
DISCHARGE AUTHORITY AR635-200, Chap 16
DISCHARGE REASON
BOARD DECISION (DENY)
REVIEW AUTHORITY
ISSUES 1. 100.0600
2.
3.
4.
5.
6.


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