RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080000714 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, her reentry eligibility (RE) code 4 be changed.  
 
2.  The applicant states, in effect, the RE-4 was unjustly assigned because she had submitted two letters to her Congressional representative accusing her chain of command of unfair treatment.  The applicant further states she was unjustly assigned an RE code of RE-4 because her microfiche did not contain all of her military schools and her awards.  

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 5 November 1992, an Academic Evaluation Report, four NCO (non-commissioned officer) Evaluation Reports (NCOER), and her orders for promotion to sergeant/pay grade E-5.

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 personnel record shows she enlisted in the Regular Army on 8 December 1983 for a period of 4 years.  She successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 76V (material storage and handling specialist).

3.  The applicant immediately reenlisted on 23 June 1987 for a period of 6 years. She was promoted to sergeant/pay grade E-5 effective 14 November 1988.

4.  Part IV (Values/NCO Responsibilities) of an NCOER for the period November 1988 to October 1989 contains the bullet comment "lacks self-discipline."  In the Competence category the applicant was rated "Needs Improvement" with the comment "failed to accomplish tasks to the fullest capacity."  In the Leadership category the applicant was rated "Needs Improvement" with the comment "needs to employ the traits of leadership by example."  The applicant was rated "Success" in the remaining categories, Physical & Military Bearing, Training, and Responsibility & Accountability.  The Rater indicated the applicant was "Marginal" in overall potential for promotion and or service in positions of greater responsibility.

5.  Part IV of an NCOER for the period November 1989 to January 1990 contains the bullet comment "personal problems conflict with duty performance."  In the Physical Fitness & Military Bearing category the applicant was rated "Needs Improvement" due to not meeting body fat standards.  It was noted the applicant was making progress in meeting Army weight standards.  The applicant was rated "Success" in the remaining categories.  The Rater indicated the applicant was "Marginal" in overall potential for promotion and or service in positions of greater responsibility.

6.  Part IV of an NCOER for the period February 1990 to January 1991 shows the applicant "Needs Improvement" in the Physical Fitness & Military Bearing category due to her failing the physical fitness test.  The applicant was rated "Success" in the remaining categories.  The Rater indicated the applicant was "Fully Capable" in overall potential for promotion and or service in positions of greater responsibility.

7.  Part IV of an NCOER for the period February 1991 to January 1992 shows the applicant was rated "Success" in all categories.  The Rater indicated the applicant was "Fully Capable" in overall potential for promotion and or service in positions of greater responsibility.

8.  On 3 June 1992, the applicant reenlisted for a period of 2 years.

9.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) lists 
17 civilian education and military schools.  The DA Form 2-1 also shows she was awarded or authorized the Army Achievement Medal, the Army Service Ribbon, the Overseas Service Ribbon, the NCO Professional Development Ribbon, the Army Good Conduct Medal, the National Defense Medal, and the Marksman Marksmanship Badge with Rifle Bar.

10.  A memorandum, dated 10 July 1992, notified the applicant that the CY92 Master Sergeant Selection Board, after a comprehensive review of her official military personnel file (OMPF), determined that she was to be barred from reenlistment.  The memorandum further advised the applicant the Board based their decision to bar her from reenlistment on her NCOER's for the periods November 1988 to October 1989, November 1989 to January 1990, and February 1990 to January 1991.  The memorandum further advised the applicant of her right to appeal the decision.

11.  On 4 August 1992, the applicant acknowledged she was notified of her Department of the Army (DA) bar to reenlistment under the Qualitative Management Program.  She also acknowledged she had been counseled and understood the options open to her as a result of the imposition of the DA bar to reenlistment and the Enlisted Qualitative Early Separation Program.  The applicant elected Option 2, indicating she would not submit an appeal and she understood she would be separated within 90 days.

12.  On 4 August 1992, the applicant's commander indicated that he would not submit a separate appeal on behalf of the applicant.

13.  On 5 November 1992, the applicant was discharged by reason of reduction in strength - Qualitative Early Transition Program.  She had completed 8 years, 10 months, and 28 days of active service that was characterized as honorable.  She was assigned an RE code of RE-4.

14.  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.

15.  Paragraph 10-5 of Army Regulation 601-280 (Army Retention Program) governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the Official Military Personnel File, the DA Form 2A (Personnel Qualification Record – Part I) and DA Form 2-1 (Personnel Qualification Record – Part II), and other authorized documents.  From these documents, the board will evaluate past performance and estimate the potential of each service member to determine if continued service is warranted.

16.  Paragraph 10-8 of Army Regulation 601-280 (Army Retention Program) provides that a Soldier may appeal the bar to reenlistment imposed under the Qualitative Management Program based on improved performance and/or material error in the Soldier’s record when reviewed by the selection board.  The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier’s performance and potential by each member of the chain of command.  Paragraph 10-10 provides that the appeal is considered by the Qualitative Management Program Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards.  The Qualitative Management Program Appeals Board will consider the Soldier’s potential for future service and promotion; review the Soldier’s complete record “de novo”; and notify the Soldier’s commander (lieutenant colonel or above) of the results of the appeal.

17.  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 (Regular Army and Army Reserve Enlistment Program), then in effect, covered 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 prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes.  

18.  Table 3-6 of Army Regulation 601-210, then in effect, provided that RE-4 applied to persons separated from last period of service with a non-waivable disqualification.  This includes persons being separated with a DA bar to reenlistment in effect.

19.  Paragraph 3-10 of Army Regulation 601-210, then in effect, provided that 
RE Codes may be changed only if they are determined to be administratively incorrect.  

20.  Table 4-2 (Non-waivable Moral and Administrative Disqualifications) of Army Regulation 601-210, then in effect, provided a list of disqualifications that could not be waived.  Persons barred from reenlistment by DA under the provisions of Army Regulation 601-280 and coded RE-4 were included on this list as a non-waiverable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was unjustly assigned an RE-4 because of her letters to her Congressional representative and missing schools and awards from her OMPF.  

2.  There is no evidence in the applicant's OMPF of her correspondence with her Congressional representative.  The applicant's DA Form 2-1 lists her civilian and military education and the awards she was awarded or is authorized.  


3.  Department of the Army Selection Boards review the performance portion of the applicant's OMPF, the DA Form 2-1, and other authorized documents to evaluate past performance and estimate the potential of each service member to determine if continued service is warranted.

4.  The memorandum, dated 10 July 1992, listed the applicant's NCOER's for the rating periods November 1988 to October 1989, November 1989 to January 1990, and February 1990 to January 1991 as those documents indicating areas of deficiency or weakness which contributed most to the decision to bar her from reenlistment.  

5.  Therefore, the evidence does not support the applicant's contentions as to the reason she received a DA bar to reenlistment and subsequently was assigned an RE-4.

6.  The applicant was properly notified of her DA bar to reenlistment and afforded the opportunity to appeal.  However, she elected not to appeal the DA bar and to be discharged within 90 days.

7.  At the time of the applicant's discharge she had a DA bar to reenlistment in effect.  Therefore, under the provisions of Army Regulation 601-210, the assignment of RE-4 is administratively correct.

8.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JLP  __  __TSK__  __DWT__   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.




      ___        TSK                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000714



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508