IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080003170
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 requests, in effect, a change to his reentry (RE) code.
2. The applicant states, in effect, he received an RE-4 code because he was separated early with separation pay. He requests his RE-4 code now be changed to allow him to enlist in the Army National Guard (ARNG).
3. The applicant provides his separation document (DD Form 214) in support of his application.
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 applicants 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 applicants 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 record shows that after having previously served in the United States Army Reserve (USAR) and on active duty in the Regular Army (RA) from 6 December 1976 through 5 December 1979, the applicant enlisted in the RA and began his last continuous period of active duty service on 7 January 1981.
3. The applicant's record shows that he last held and served in military occupational specialty (MOS) 18B (Special Forces Weapons Sergeant). It further shows that he was promoted to staff sergeant (SSG) on 1 June 1991, and that this is the highest rank he attained while serving on active duty.
4. On 5 April 1993, the applicant was notified that after a comprehensive review of his Official Military Personnel File (OMPF), the Calendar Year 1993 (CY93) Sergeant First Class (SFC) Promotion Board had determined he should be barred from reenlistment under the provisions of the Qualitative Management Program (QMP). The applicant was advised of his right to appeal the QMP decision within 60 days of completing his statement of options. The record gives no indication that the applicant appealed the QMP action.
5. On 12 August 1993, the applicant was honorably discharged under the provisions of Paragraph 16-8, Army Regulation 635-200, by reason of qualitative early transition program, after completing a total of 10 years, 7 months, and
6 days of active military service. The DD Form 214 he was issued shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of JCC and an RE code of RE-4.
6. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR). 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 have a nonwaivable disqualification.
7. 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 JCC is the appropriate code to assign to Soldiers separated under the provisions of Paragraph 16-8, Army Regulation 635-200, and the SPD/RE Code Cross Reference Table indicates that RE-4 is the proper code to assign members separated under the provisions of the QMP.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for a change to his RE code was carefully considered. However, by regulation, RE-4 is the proper reentry code to assign members separated under the provisions of Paragraph 16-8, Army Regulation 635-200, under the provisions of QMP. The evidence of record confirms he had been selected for the QMP by a properly constituted Department of the Army promotion board, and that his RE-4 code assignment was properly assigned as required by the governing regulation. Therefore, notwithstanding his desire to enlist in the ARNG, the RE-4 code he was assigned at the time of his discharge was and remains valid.
2. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ___x____ 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.
_______x______________
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) AR20080003170
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