RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	24 April 2007  
	DOCKET NUMBER:  AR20060013064 


	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.



	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, in effect, that his Reenlistment (RE) Code be changed from RE-3 to RE-1 and that a Letter of Reprimand (LOR) [sic] be removed from his official military personnel file (OMPF). 

2.  The applicant states, in effect, that he completed his required service and an extension for the needs of the Army.  He also states that he did not know he was able to request this change until 31 August 2006.  He should have been given a RE Code of "1" because his separation program designator (SPD) code is LBK.  Changing the RE Code is imperative to his future.

3.  The applicant further states that approximately 45 days before his scheduled expiration of term of service, he was involved in an incident.  He was administered an Article 15 for driving under the influence of alcohol on the Fort Bragg, North Carolina, military reservation.  However, he was not seen driving nor was he stopped by an officer.  He was in the parking lot of his barrack as the report states. He had been drinking, was in possession of his car key, and was belligerent with the military police.  He acknowledges all this now as he did then, but he was not operating a vehicle.  He refused a breath test due to the desire to have his first sergeant present.  He was not allowed a second opportunity to provide a breath test when his first sergeant arrived, as he should have been.  For this reason he had to surrender to a blood test for alcohol and received a LOR for refusing the breath test.  

4.  The applicant also states, in effect, that during this time period, Fort Bragg was enduring a difficult period.  The reservation had endured a high profile shooting on the post parade field by a Soldier who killed several Soldiers, both enlisted and an officer.  His command was treating every incident of any kind in a heightened manner due to these events.  None of those incidents are provided as an excuse for what happened to him; however, they do stand as evidence that his incident was not severe and that under normal circumstances would have been handled at the Company level, which was the norm as of 26 February 1996.  He paid the price and then he was unjustly given a RE Code of "3."  He is currently enrolled in graduate school and months away from receiving his master's degree.  This degree and an upgrade of his RE code will provide him a once in a lifetime opportunity as an officer candidate in the United States Navy.

5.  The applicant provides copies of his Memorandum of Reprimand (MOR), his Article 15, his acknowledgment for receipt of the MOR, and his DD Form 214 (Certificate of Release or Discharge From Active Duty), in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 May 1996, the date of his discharge from active duty.  The application submitted in this case is dated 31 August 2006.

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 limitations 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's military records show he enlisted in the Regular Army, in pay grade E-1, on 14 October 1992, for 3 years.  On 22 July 1994, he extended his enlistment for 7 months and his new expiration of term of service was established as 13 May 1996.

4.  The applicant was promoted to pay grade E-4 on 14 December 1994.

5.  On 6 March 1996, the applicant was issued a MOR for refusing to submit to a lawfully required blood alcohol test when he was apprehended for driving while impaired on 26 February 1996.  Pursuant to Army Regulation 190-5, paragraph 2-3, the applicant had given his consent to such a test by operating a vehicle on a military installation.  The MOR advised that any matter submitted in rebuttal received within 5 days of receipt of the MOR would be considered before the MOR was filed in his OMPF.

6.  On 14 March 1996, the applicant acknowledged that he had read and understood the MOR.  Initially, he elected to submit a statement or document in his own behalf, but subsequently declined the right.

7.  On 18 March 1996, the applicant was punished under Article 15, Uniform Code of Military Justice, for operating a motor vehicle, a passenger car, while drunk on or about 26 February 1996.  His punishment included reduction to pay grade E-3; a forfeiture of $500.00 per month for one month, suspended, to be automatically remitted if not vacated before 1 May 1996; and extra duty for 
45 days.  He did not appeal the punishment.

8.  The applicant was reduced to pay grade E-3 on 18 March 1996.  The applicant was serving on his initial enlistment in the Army albeit on a 7 month extension of his service.

9.  On 15 April 1996, after review of the MOR, supporting documentation, and reprimand of the applicant, the Deputy Commanding General, Headquarters, XVIII Airborne Corps and Fort Bragg, NC, directed the MOR be filed permanently in the applicant's OMPF.  

10.  The applicant was honorably released from active duty for completion of the required active service on 13 May 1996, in pay grade E-3, under the provisions of Army Regulation 635-200, Chapter 4.  He was credited with 3 years and 7 months total active service.  He was transferred to the United States Army Reserve Control Group (Reinforcement).

11.  Item 18 (Remarks) of the applicant's DD Form 214 shows "extension of service was at the request and for the convenience of the government."  Item 27 (Reentry Code) shows the RE Code of "3" and Item 26 (Separation Code) shows "LBK."

12.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.

13.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army.

14.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are also disqualified.

15.  Army Regulation 190-5, prescribes the policies and procedures for motor vehicle traffic supervision on military installations in the continental United States. Paragraph 2-3, specifies that persons who drive on the installation shall be deemed to have given their consent to evidential tests for alcohol or other drug content in their blood, or urine, when lawfully stopped, apprehended, or cited for any offense allegedly committed while driving or in physical control of a motor vehicle on a military installation to determine the influence of intoxicants. 

16.  Army Regulation 601-201, Chapter 3-10, also provides that RE Codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE Codes would be processed for a waiver at their request, if otherwise qualified, and a waiver is authorized.  

17.  Army Regulation 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD "LBK," as shown on the applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is completion of required active service and the Soldier is ineligible for, barred from, or otherwise denied reenlistment.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for completion of required active service.  It shows the SPD code of "LBK" with a corresponding RE Code of "3."

18.  Army Regulation 601-280, Chapter 3, paragraph 3-8.g. in effect at the time, provided that the grade requirement was non-waivable.  A Soldier could not exceed the retention control point in Table 3-1 (Retention Control Points).  The retention control point for the ranks of private and private first class was 3 years. 

19.  Army Regulation 600-37, in pertinent part, provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.

20.  Army Regulation 600-37, also provides that a LOR or MOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a general officer.  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memorandums) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the 
R-fiche.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The Department of the Army Suitability Board (DASEB) has been established as the appeal and petition authority for unfavorable information entered in the OMPF under this regulation.

21.  Army Regulation 600-37, further specifies that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole, or in part, thereby warranting its alteration or removal from the OMPF.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army for 3 years in 1992 and extended his reenlistment for 7 months in 1994.  He received an Article 15 on 18 March 1996 and was reduced to pay grade E-3.  Pertinent regulations show that Soldiers who were reduced in grade in their initial period of enlistment were not authorized reenlistment.  The applicant had also exceeded his retention control point of 3 years for his rank, private first class, and was therefore not qualified for reenlistment; therefore, he was appropriately assigned an RE Code of "3.” 

2.  It is apparent that the applicant wishes to be appointed in the United States Navy as an officer candidate; however, his RE Code of "3" prevents him from being appointed.  Based on the foregoing, there is no basis upon which a change of the applicant's RE Code on his DD Form 214 can be supported.  The applicant is advised that an RE Code of "3" is waivable and he should seek the guidance of Naval recruiters/career counselors in seeking such a waiver, if he is otherwise qualified.

3.  The applicant is also not entitled to removal of his MOR from his OMPF.  He has not shown error, injustice, or inequity for the relief he now requests.

4.  The applicant was issued a MOR and was provided the opportunity to rebut his reprimand and he elected not to do so.  After considering the supporting documentation and the reprimand, on 15 April 1996, the Deputy Commander, Headquarters, XVII Airborne Corps and Fort Bragg, determined that the MOR should be filed permanently in the applicant's OMPF.  

5.  There is no evidence the applicant applied to the DASEB, in accordance with his authority under Army Regular 600-37.  Therefore, it is also concluded that the applicant has not provided clear and convincing evidence that the document was untrue or unjust, in whole, or in part, to support his request for its total removal from his OMPF.  Therefore, there is no basis for removing the MOR entirely from his OMPF.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 May 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 May 1999.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEV__  ___PM__  __GJP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____James E. Vick_______
          CHAIRPERSON



INDEX

CASE ID
AR20060013064
SUFFIX

RECON

DATE BOARDED
20070424
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19960513
DISCHARGE AUTHORITY
AR635-200, Chapter 4
DISCHARGE REASON
Completion of required active service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.03
2.
126.03
3.

4.

5.

6.