IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20070003390 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, in three applications, requests, in effect, the removal of two enlisted evaluation reports (EERs) covering the period August 1984 through January 1985 and February 1985 through July 1985.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his discharge on 22 July 1986, which will simply be referred to as his DD Form 214 throughout the remainder of these proceedings, to reflect that the narrative reason for his discharge was due to completion of his obligated service, and that his reentry (RE) code be changed from a “4” to a “3.”  

2.  The applicant essentially states that various errors and biases are evident throughout the two EERs in question, and that these reports were done hastily, without preparation, and with a personal prejudice against him.  He also states, in effect, that these EERs have no valid basis, and therefore the periods covered by these two EERs should be considered non-rated time.  He further states, that his RE code of “4” is a bar to any future enlistment, regardless of component.  He continued by essentially stating that his RE code should have been a “3,” requiring Department of the Army (DA) approval, since they are the barring authority.  He also states, in effect, that the first two of his three DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) were submitted to eliminate the reasons for his bar to reenlistment, the narrative reason for his discharge should be corrected to reflect an entry of “Completion of Obligated Service,” and that his RE code should be a “3.”

3.  The applicant provides his EERs for the period August 1984 through January 1985 and February 1985 through July 1985; two copies each of a page documenting the errors in the latter EER in question; a recap page and a page related to considerations related to his discharge; his DD Form 214 that was issued at the time of his discharge on 22 July 1986; a letter, dated 17 April 1985, from a Senior Career Advisor at the United States Army Military Personnel Center [now known as the United States Army Human Resources Command]; an extract of Army Regulation 635-200 (Enlisted Personnel); and a Standard Form 180 (Request Pertaining to Military Records) in support of his three applications.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant provided copies of his EERs for the period August 1984 through January 1985 and February 1985 through July 1985, and essentially contends that these EERs should be removed from his military records, and that the period covered by these EERs be declared non-rated time.  He also provided a document outlining the errors and biases he alleges are contained on his EER for the period February through July 1985, which included that:

	a.  his secondary military occupational specialty (SMOS) was 76Y3O; however, 76Y3O is the listed SMOS on his EER for the period February through July 1985.  It was noted that his EER for the period August 1984 through January 1985 showed that his SMOS was 71L3O;

	b.  the principal duty title “Admin Section Sergeant” on this EER does not match the duty title “[Maintenance Administrative] Supervisor” shown on his EER for the period August 1984 through January 1985;

      c.  his physical training (PT) score and height/weight results do not coincide with the numeric score given by his indorser;
      d.  the rater scores in Part III (Evaluation of Professionalism and Performance) in this EER are higher than his previous EER, and lower than the indorser’s scores in this part;
      
      e.  the indorser essentially stated that he was “not competent…technical,” when this is completely contradictory to what his indorser stated in a previous EER;
      
      f.  the indorser essentially stated that he was removed from his position, but that had he actually been removed, he should have received a relief for cause EER;
      
      g.  his social security number is wrong in part Vc of his EER; and
      
      h.  that the entry in Part Vc of his EER which indicated that he refused to sign is totally inaccurate, and that he was preparing to go on leave, but did not depart until approximately 1 week after the EER was completed.

3.  There is no evidence which shows the applicant submitted an appeal of his EERs under the provisions of Army regulations in effect at the time.

4.  The applicant also essentially requested correction of his DD Form 214 to reflect that the narrative reason for separation was due to completion of his obligated service, and that his RE code be changed from a “4” to a “3.”  However, the applicant's military records clearly show that he reenlisted on 6 January 1986 for a period of 5 years, which made his expiration of term of service (ETS) 
5 January 1991.  It was noted that the applicant voluntarily requested discharge under the provision of Chapter 16, Army Regulation 635-200 on 19 June 1986 because he had a DA-imposed bar to reenlistment which he felt that he could not overcome.  

5.  Army Regulation 635-200 sets forth the policies and procedures for the administrative separation of enlisted personnel of the Army.  Paragraph 16-5, in effect at the time, provided the authority for Soldiers denied or ineligible for continued active duty service to be separated upon their request.  It allowed Soldiers who perceived that they could not overcome DA or locally imposed bars to reenlistment to request early separation prior to the completion of their obligated service or, in other words, prior to serving until their ETS. 

6.  Army Regulation 635-5-1 (Separation Program Designators), in effect at the time, provided specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. This regulation stated that the SPD code of KGF was the appropriate code to assign to Soldiers separated under the provisions of paragraph 16-5 of Army Regulation 635-200, by the reason of either a DA-imposed or locally imposed bar to reenlistment.  The SPD/RE Code Cross Reference Table in effect at the time established RE-4 as the proper code to assign members separated with SPD code of KGF.  

7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the United States 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 Regular Army RE codes.  RE codes 1 and 2 permit immediate reenlistment if all other criteria are met.  An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that two EERs covering the period August 1984 through January 1985 and February 1985 through July 1985, should be removed from his military records.  He also contends that the narrative reason for separation and RE code shown on his DD Form 214 should be changed.

2.  Although certain administrative inaccuracies were noted on the applicant's EERs for the period August 1984 through January 1985 and February 1985 through July 1985, the applicant did not provide any substantial evidence which shows that the rater or indorser rendered unjust or inaccurate evaluations of the applicant for the period covered in these EERs which could remotely justify removing these EERs from his official records and declaring the period of service covered by these EERs as non-rated time.  As a result, there is no basis for granting relief to this portion of the applicant's request.
3.  The evidence of record shows that the applicant was discharged at his own request, based on his perception that he could not overcome his DA-imposed bar to reenlistment.  His separation processing was accomplished in accordance with the applicable regulations, and based upon his SPD code of KGF, he was properly assigned an RE Code of "4."  As a result, the applicant did not in fact complete his obligated service, and is not entitled to correction of his narrative reason for separation or his RE code on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20070003390



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ABCMR Record of Proceedings (cont)                                         AR20070003390



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