RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	22 April 2008  
	DOCKET NUMBER:  AR20070014193 


	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 following members, a quorum, were present:













	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, correction to NGB Form 22 (Report of Separation and Record of Service), by upgrading his reenlistment eligibility (RE) Code to RE-1 and removal of the Army Physical Fitness Test (APFT) and Weight Control Program (WCP) FLAGs (Report to Suspend Favorable Personnel Actions).   

2.  The applicant states, in effect, that his NGB Form 22 does not reflect the proper RE Code.  He also states that it should be corrected based on the removal of the APFT and WCP FLAGs.  Both the WCP and APFT were passed prior to his discharge.  He further states, in effect, that his unit failed to process the paperwork requesting the change and reissuance of the NGB Form 22, as it currently reflects poorly upon him.  He must submit his NGB Form 22 to the Civil Service Commission for Law Enforcement Testing and Candidate Eligibility.  He believes, in effect, that there is injustice due to the unit's failure to process the paperwork.

3.  In support of his request, the applicant provides copies of his DA Forms 268 (FLAG), his DA Form 705 (APFT Test Scorecard), his DA Form 5500-R (Body Fat Content Worksheet), and his NGB Form 22.

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's military records show he enlisted in the Pennsylvania Army National Guard (PAARNG) on 26 July 2001.  He was promoted to pay grade E-4 on 14 July 2002. 

3.  The applicant submits a copy of his DA Form 268, dated 14 September 2002, that shows a FLAG was initiated by his unit for the WCP.  He also submits a copy of his DA Form 268, dated 12 January 2003, that shows a FLAG was initiated by his unit for an APFT failure.

4.  The applicant further submits a copy of his DA Form 705, dated 21 November 2003, that shows he passed the APFT on that date.  He also submits a copy of his DA Form 5500-R, dated 21 November 2003, that shows he was in compliance with Army height and weight standards on the same date.

5.  The applicant was honorably discharged from the PAARNG, in pay grade E-4, on 14 June 2004, at the expiration of his term of service.  He was transferred to the United States Army Reserve Control Group (Annual Training).  Item 18 (Remarks), of his NGB Form 22, show the entries, "Flagged for APFT:  030112" and "Flagged for WCP:  020914."  Item 26 (RE) shows RE-3.

6.  In an advisory opinion, dated 27 March 2008, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau (NGB), reiterated the applicant's request.  The NGB official stated that the applicant initially received an RE-3 Code due to FLAGs for the APFT and enrollment in the WCP.  The applicant submitted documentation that demonstrated he met the Army's weight and APFT standards prior to his discharge from the Army.  The applicant should not have been flagged at the time of discharge; thus, his RE Code should be upgraded to "1."  Army Regulation 600-8-2, Chapter 1, Paragraph 13(c), states that a FLAG for failure to pass the APFT should be removed on the day the Soldier passes the APFT or at the expiration of term of service.  Paragraph 13(d) states a FLAG for entry into the WCP should be lifted on the day the Commander decides that the Soldier is in compliance with the program.  The applicant's DA Form 705 shows the applicant passed the AFPT in accordance with Field Manual 21-20, on 21 November 2003.  The applicant's DA Form 5500-R demonstrated that the applicant met the height and weight standards as prescribed in Army Regulation 600-9, Table 3-2, on 21 November 2003.  The Puerto Rico Enlisted Personnel Manager, SGM ________, confirmed that the RE-3 Code was given due to APFT and WCP failures.

7.  Based on the foregoing, the NGB, Chief, Personnel Division, recommended approval of the applicant's request for an RE code upgrade.  

8.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 1 April 2008 and he concurred on 10 April 2008.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to a change of his RE Code from RE-3 to RE-1.  His records clearly show he passed the APFT and met the Army height and weight standards on 21 November 2003, prior to his discharge on 14 June 2004.  Therefore, it is recommended that the applicant's NGB Form 22 be corrected to show the RE Code of "1."

2.  Based on the evidence and as a matter of equity in this case, it would also be appropriate to remove the record of the FLAGs for the APFT and WCP from Item 18 of the applicant's NGB Form 22. 

3.  In view of the foregoing, and insofar as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

___x_  ___x__  __x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State of Pennsylvania Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  removing from Item 18 (Remarks), of the applicant's NGB Form 22, dated 14 June 2004, the entries "Flagged for APFT:  030112" and "Flagged for WCP:  020914"; 

	b.  showing a Reenlistment Eligibility Code of "1," in Item 26 (Reenlistment Eligibility), of his NGB Form 22, dated 14 June 2004; and

	c.  providing him a corrected separation document that includes these corrections.




      	_____  x    _____
                		CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20070014193


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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