RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: MARCH 2, 2004
         DOCKET NUMBER: AR2003091349


         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Robert Duecaster		Member
Mr. Arthur A. Omartian		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his RE (Reenlistment Eligibility) Code, RE Code 4, be changed. On 11 December 2003, the applicant submitted an amendment to his DD Form 149, Application for Correction of Military Record, and requested that the recoupment of his separation pay by the Internal Revenue Service, in behalf of the Army, be reviewed and that if it was recouped in error, that it be returned to him.

2. The applicant states, in effect, that he received an RE Code of 4 although he had never had any disciplinary action taken against him as a member of the service. He received money in the amount of $8500 [sic] upon leaving the service and six months later receive a letter asking that it be refunded. The Government took his income tax for the years of 1994 and 1995 earnings until the debt was paid. He feels that it was taken back in error and that he is entitled to the separation pay. He further states, in effect, that he would like to have the RE Code changed so that he can enter the Army National Guard. The currently applied RE Code hinders him from being able to be reinstated and serve his country as a member of the Army National Guard.

3. The applicant provides a copy of a self-authored statement which describes his departure from the Army and which contains his request for an explanation why he received an RE Code of 4; and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice, which occurred on 25 July 1993. The application submitted in this case is dated 13 May 2003, and the amendment to his application is dated 11 December 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted in the United States Army Reserve (USAR) in the Army's Delayed Entry Program on 30 December 1986 and remained in the USAR until 10 February 1987. He enlisted in the Regular Army on 11 February 1987; he reenlisted on 12 January 1990 and again on 25 July 1991, and was

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honorably released from active duty on 25 July 1993, in the rank and pay grade, Corporal, E-4, under the provision of Army Regulation (AR) 635-200, chapter 4, at the expiration of his term of service.

4. The applicant's DA Form 2A, Personnel Qualification Record, Part I, section II (Qualification Data), item 33 ("Reen Elig/Inelig Grade) shows that the code "9G" was applied to this item.

5. The applicant was separated and assigned a reentry code and an SPD (separation program designator) in accordance with regulations then in effect. The applicant was assigned a SPD code of "LBK" (involuntary release from active duty) and an RE Code of "4."

6. During his service, the applicant was awarded the Army Achievement Medal; the Good Conduct Medal, second award; the National Defense Service Medal; the Noncommissioned Officer Professional Development Ribbon; the Army Service Ribbon; the Overseas Service Ribbon; the Sharpshooter Marksmanship Qualification Badge, with Grenade Bar; the Marksman Marksmanship Qualification Badge, with Rifle Bar; and the Army Lapel Button.

7. On 18 June 1993, the applicant enlisted, according to Section B (Agreements) on his DD Form 4/1-E, Enlistment / Reenlistment Document in the USAR (IRR) for a period of 4 years, 05 months, and 05 days, in pay grade E-4. A DD Form 4/2-E, in the applicant's record, shows that he took the oath of enlistment to confirm his enlistment in the Reserve on the same date.

8. On 4 May 1993, Headquarters, III Corps and Fort Hood, published Orders
86-16, assigning the applicant to the USAR Control Group (Reinforcement) ARPERCEN, 9700 Page Blvd, St. Louis, Mo 63132.

9. Block 18 (Remarks) of the applicant's DD Form 214, shows that he was authorized separation pay in the amount of $9,711.74.

10. Block 23 (Type of Separation), of the applicant's DD Form 214 shows that he was released from active duty.

11. AR 680-29, Table 5-3, provides the instructions for coding the DA Form 2A. The code "9G" is applied to soldiers who are ineligible for reenlistment if at the end of their reenlistment, they will exceed the total years active service for their pay grade.

12. AR 601-280, section VIII, paragraph 2-22.a. in effect at the time of the

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applicant's separation, provided that a soldier must not exceed the retention control point by more than 29 days before expiration of contracted service. The retention control point for Corporal/Specialists, not on a promotion order-of-merit list, was 8 years total active service.

11. AR 601-210 sets forth the procedures and policy for enlistment and reenlistment into the Regular Army and the Reserve. It provides 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. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. It states, in pertinent part, that RE-1 applies to persons who are completing their period of active service who are eligible for immediate reenlistment. An RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification that includes persons being separated in pay grade E-2 and below, persons with bars to reenlistment who request separation prior to the end of their active duty obligation, who are separated with a Department of the Army bar to reenlistment in effect or who exceed their retention control point.

12. AR 635-5-1, in Table C-1 shows that soldiers involuntarily released from active duty and transferred to the USAR at the completion of required active service will be given an SPD of "LBK." Footnote 7, of the table, states that the code "LBK" will be "used for Regular Army soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment."

13. Department of the Army Circular 635-92-1 (Separation Pay) outlines the eligibility criteria for separation pay. This Circular provides, in pertinent part, that full separation pay is authorized for soldiers who have completed at least 6 years, but fewer than 20 years of active service; the soldier's service is characterized as Honorable; and is being involuntarily separated as a result of denial of reenlistment.

DISCUSSION AND CONCLUSIONS:

1. The applicant reached the maximum retention control point for his pay grade E-4. On his separation date, the applicant had 6 years, 5 months, and 14 days active service. If the applicant had applied for reenlistment for the minimum number of years, he would have exceeded the retention control point for his pay grade.

2. The applicant was not on a promotion order of merit list to the pay grade, E-5 on the expiration of his term of service.

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3. The applicant completed his enlistment obligation and was honorably released from active duty. The evidence of record shows that he was otherwise fully eligible to reenlist but was precluded from reenlisting in the Regular Army.

4. The soldier was involuntarily released from active duty at the expiration of his term of service. The SPD of "LBK" that was applied was correct. The applicant was separated from his last period of service with a nonwaivable disqualification. The RE Code that was applied corresponds to the SPD and is also correct.

5. The applicant enlisted in the US Army Reserve for a period of 4 years, 5 months and 5 days. He was reassigned to the Reserve (Reinforcement) on his release from active duty.

6. The applicant was authorized full separation pay in the amount of $9,711.74 in the DD Form 214 that was provided him on his separation date.

7. The applicant met the criteria to receive full separation pay established in Army Circular 635-92-1 (Separation Pay) in that he had completed at least 6 years, but fewer than 20 years of active service; his service was characterized as honorable; and he was involuntarily separated as a result of denial of reenlistment, even though he was otherwise fully qualified for reenlistment, because he had reached his maximum retention point for his pay grade.

BOARD VOTE:

fne_____ aao_____ ryd_____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file. As a result, the Board recommends that the Defense Finance and Accounting Service review the applicant's military pay records to determine if:

         a. full separation pay that the applicant was authorized to receive, and which he attests to have received, was recouped by the Internal Revenue Service in behalf of the Army:

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         b. if the separation pay was recouped by the Internal Revenue Service in behalf of the Army, that it be returned to him by the Army.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the applicant's request to have his RE Code changed from "4" to another RE Code that would enable his enlistment in the Army National Guard.





                  ___Fred N. Eichorn___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091349
SUFFIX
RECON
DATE BOARDED	20040302
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT IN PART
REVIEW AUTHORITY
ISSUES 1. 1021	100.0000
2. 4	100.0300
3. 283	128.0000
4. 297	128.1400
5.
6.