RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060016107 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter 

Member

Mr. Edward E. Montgomery

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, in effect, that his Reentry (RE) Code "4" be changed to RE "3."

2.  The applicant states, in effect, that he is trying to enter the United States Army National Guard (ARNG) in his area.  He was informed by the NG (National Guard) recruiter that his reentry code is incorrect with his narrative reason for separation.  He adds that his discharge was inequitable because it was based on one isolated incident in 13 years of service with no other adverse action.  He adds that he made a bad judgment call when borrowing money from a subordinate Soldier which was paid back, and this is the only reason for his bar to reenlistment.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 August 1996, the date of his discharge.  The application submitted in this case is dated 9 November 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 on 19 April 1983.  The applicant successfully completed basic combat training at Fort Dix, New Jersey, and advanced individual training at Fort Jackson, South Carolina.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 75D, Personnel Records Specialist.

4.  The applicant was promoted to sergeant (SGT/E-5) with an effective date of 1 October 1987 and date of rank of 6 September 1987.


5.  On 16 April 1996, the Department of the Army CY96 Master Sergeant Promotion Board, after a comprehensive review of the applicant's Official Military Personnel File (OMPF), determined that he should be barred from reenlistment.  The board indicated that a sealed envelope contained an updated copy of his OMPF (Official Military Personnel File) and a list of those documents indicating areas of deficiency or weakness which contributed most to the board's decision to bar him from reenlistment.  These documents were not contained in his military personnel file and are unavailable for review.

6.  On 4 June 1996, the applicant elected not to appeal his DA bar to reenlistment and understood that he would be separated within 90 days of the date of his option.

7.  The applicant was honorably discharged on 31 August 1996, in the rank and pay grade of SGT/E-5, under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-8, due to reduction in force.  He had completed 13 years,
4 months, and 12 days of creditable service.

8.  The applicant was given a separation code of JCC, assigned an RE code of 4, and the narrative reason for separation entered on his discharge certificate was Reduction in Force.

9.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

10.  AR 635-5-1 prescribes 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 separation program designator JCC will be used to identify Soldiers when the narrative reason for their separation is, "Reduction in Force."  Table 2-3 (SPD/RE Code Cross Reference Table) in Army Regulation 635-5-1 shows that when the SPD JCC is used, an RE code 3 or 4 will be applied.

11.  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 U. S. 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 code 3 applies to person not qualified for continued Army service, but the disqualification is waivable.
RE code 4 applies to individuals separated from their last period of service with a non-waivable disqualification.  This includes anyone with a Department of the Army-imposed bar to reenlistment in effect at the time of separation, or separated for any reason (except length of service retirement) with 18 or more years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was identified by the Department of the Army CY96 Master Sergeant Promotion Board for the imposition of a HQDA bar to reenlistment.  The applicant was notified that he had the right to submit an appeal and he voluntarily declined to do so.

2.  The applicant was honorably discharged, within 90 days, under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-8, due to reduction in force, on 31 August 1996.

3.  The applicant's discharge was accomplished in compliance with applicable regulations at the time.  The SPD, JCC, that was applied to the applicant's DD Form 214, corresponds to the narrative reason shown on the applicant's
DD Form 214.

4.  The applicant was assigned an RE code 4, which applies to individuals separated from service with a non-waivable disqualification.  This non-waivable disqualification includes anyone with a Department of the Army imposed bar to reenlistment in effect at the time of separation.

5.  The applicant alleges that his discharge was inequitable because it was based on one isolated incident in 13 years, with no adverse action.  He also alleges that he made a bad judgment call when borrowing money from a subordinate Soldier which was paid back, and that this is the only reason for his bar to reenlistment.  There is no evidence, and the applicant has provide none, to show that this was the only isolated incident that could have cause his bar to reenlistment.

6.  The board indicated that a sealed envelope contained a list of those documents indicating areas of deficiency or weakness which contributed most to the board's decision to bar him from reenlistment was provided for the applicant's review.  However, these documents were not contained in his military personnel file and were unavailable for review.  
7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 August 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 August 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

__PMS__  __EM____  __DKH__  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.




___   _Paul M. Smith_______
          CHAIRPERSON




INDEX

CASE ID
AR20060016107
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070501
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19960831
DISCHARGE AUTHORITY
AR 635-200, chapter 16, paragraph 16-8
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100
2.

3.

4.

5.

6.