RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  17  April 2007
	DOCKET NUMBER:  AR20060013952 


	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. Gerard W. Schwartz

Acting Director

Ms. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray 

Member

Ms. Rea M. Nuppenau

Member

	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 code (RE) be changed from RE-4 to RE-3. 

2.  The applicant states, in effect, that the RE-4 is not a true representation of his military career.    

3.  The applicant provides a self-authored statement and copies of his Noncommissioned Officer Evaluation Reports (NCOERs) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 31 July 1998.  The application submitted in this case is dated 
28 July 2006.  The application was received in this office on 2 October 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 record shows he enlisted in the Regular Army and entered active duty on 8 January 1981.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman), and the highest rank he attained while serving on active duty was staff sergeant (SSG).  

4.  The applicant’s record shows that during his tenure on active duty, he completed two overseas tours and he earned the following awards:  the Army Service Ribbon; the Army Good Conduct Medal (5th Award); the Overseas Service Ribbon (2nd Award); the Army Achievement (2nd Award); the Army Commendation Medal (2nd Award), the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2; the Expert Infantryman Badge, the Parachutist Badge, the Ranger Tab, the Drill Sergeant Qualification Badge, and the Expert Marksmanship Qualification Badge with Rifle Bar.

5.  On 1 August 1996, the CY 96 (Calendar Year 1996) Sergeant First Class/ANCOC Promotion/Selection Board convened and after a comprehensive review of the applicant’s record, determined that he should be barred from reenlistment under the provisions of the Qualitative Management Program (QMP).

6.  On 26 August 1996, the commander notified the applicant of his Department of Army (DA) Imposed Bar to Reenlistment under the QMP.  The applicant was counseled and advised of the basis for the contemplated separation action, its effects, the rights available to him, and of the effect waiving those rights.  Subsequent to this counseling, the applicant elected to submit an appeal in his behalf. 

7.  On 11 March 1997, the applicant was notified that the DA Stand-By Advisory Board (STAB) denied his QMP appeal.  

8.  On 11 March 1997, DA directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 16-8 by reason of reduction in force.  DA further directed that the applicant be assigned a Separation Program Designator (SPD) code of JCC and an RE code of RE-4.  On 31 July 1998, the applicant was discharged accordingly.  

9.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms the applicant was separated under the provisions of Army Regulation 635-200, paragraph 16-8, by reason of reduction in force.  This document also indicates that based on the authority and reason for discharge, the applicant was assigned a SPD code of JCC and a RE-4 code.  

10.  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 US Army Reserve.  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-4 applies to persons who are permanently disqualified for continued Army service.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JCC is the appropriate code to assign to soldiers separated under the provisions of paragraph 16-8, Army Regulation 635-200, by reason 
reduction in force.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign members separated with this SPD code who have received a DA Imposed Bar to Reenlistment under the provisions of the QMP.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE-4 code he was assigned at separation does not accurately reflect his military career was carefully considered.  However, there is insufficient evidence provided to support this claim.  

2.  By regulation, the RE-4 code assigned the applicant was the proper code to assign members separating under the provisions of chapter 16, Army Regulation 
635-200, by reason of reduction in force, who had received a DA Imposed Bar From Reenlistment under the provisions of the QMP.  As a result, the RE-4 code was and still is appropriate based on the authority and reason for his separation.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

4.  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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 July 1998.  Therefore, the time for him to file a request for correction of any error or injustice expired on 30 July 2001.  He failed to 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

___JTM_    ___TMR    ___RMN    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.




     ___John T. Meixell______
          CHAIRPERSON





INDEX

CASE ID
AR20060013952
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.

2.

3.

4.

5.

6.