RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080005300 


	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:


M

Chairperson

M

Member

M

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 correction of the Narrative Reason of Separation from "Unsatisfactory Performance" to a more favorable reason, and in effect, his reentry (RE) code from RE-3 to a more favorable code. 

2.  The applicant states that at the time of his discharge, he did not make it through the military training he signed up for and elected to be discharged instead.  He was young and did not fully understand the implications of his decision at the time.  He has grown since then and learned from his experience.  He has served honorably [in the Army National Guard] for the past 11 years, attained the rank/grade of staff sergeant (SSG)/E-6, served in Iraq, and has received a commendation medal for valor.  He concludes that he is seeking a full time position with the Army National Guard and needs the narrative reason for separation and, in effect, his RE code corrected in order to be accepted for a position.

3.  The applicant did not provide any additional documentary evidence in support of his application.

4.  On 15 April 2008, by fax, the applicant submitted the following additional documentary evidence in support of his application:

	a.  memorandum, dated 5 March 2008, Return of Active Guard Reserve (AGR) Application;

	b.  memorandum, dated 22 March 2002, Office of the Chief, Army Reserve, Washington, D.C., Nonwaivable Officer and Enlisted AGR Disqualifications;

	c.  DA Form 638 (Recommendation for Award), award of the Army Commendation Medal;

	d.  National Guard Bureau Form 22-3 (Request for waiver), dated
13 March 1997; and

	e.  DD Form 369 (Police Record Check), dated 1 May 1996.





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 record shows that he was born on 7 September 1973 and enlisted in the Regular Army on 30 June 1993, at the age of 19.  He completed basic combat training at Fort Sill, Oklahoma, and was subsequently assigned to A Battery, 2nd Battalion, 80th Filed Artillery, Fort Sill, Oklahoma, to attend advanced individual training (AIT) for military occupational specialty (MOS) 13P (Multiple Launch Rocket System (MLRS) Operations/Fire Direction Specialist). However, there is no indication in his record that he completed AIT or was awarded an MOS.  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  The applicant's record further shows that he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar during his initial period of military service.  The applicant's records do not show any significant acts of valor during this period of military service.

4.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the DD Form 214 he was issued at the time of his discharge shows he was discharged under honorable conditions, on 4 February 1994, for unsatisfactory performance, in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations), and received an RE-3 code.  This form also shows he had completed 7 months and 5 days of creditable active military service. 

5.  On 24 July 1997, the applicant enlisted in the Michigan Army National Guard (MIARNG) for a period of 8 years.  He was awarded MOS 62E (Heavy Construction Equipment Operator) and was subsequently promoted to sergeant (SGT)/E-5 on 1 December 2000 and to SSG/E-6 on 2 February 2008.
6.  On 10 February 2003, the applicant was ordered to active duty as a member of his Reserve unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 14 June 2003 to 13 June 2004.  He was honorably released from active duty and reverted back to his ARNG status on 3 August 2004.  

7.  On 20 October 2003, the applicant was recommended for award of the Soldier’s Medal for meritorious achievement while providing emergency medical treatment to military and civilian personnel while serving in Iraq in support of Operation Iraqi Freedom.  However, the approval authority downgraded the recommendation and approved an award of the Army Commendation Medal. 

8.  On 24 March 2004, the applicant was recommended for award of the Army Commendation Medal with "V" Device for heroic actions in combat operations in support of Operation Iraqi Freedom.  However, the approval authority downgraded the recommendation and approved an award of the Army Commendation Medal.

9.  On 5 March 2008, the applicant's application for an AGR position within the MIARNG was returned without action.  By memorandum, the applicant was notified that his earlier "RE-3" code and "Unsatisfactory Performance" narrative reason for separation disqualified him from entering the AGR program. 

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his first discharge within its 15-year statue of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

12.  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), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US 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:

	a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army.

	b.  RE-2 is not used. 

	c.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	d.  RE-4 applies to individuals separated from their last period of service with a nonwaiverable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years of active federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his "Unsatisfactory Performance" narrative reason for separation should be changed to something more favorable.

2.  The applicant was 19 years of age when he enlisted in the Regular Army.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the available record and the applicant did not provide sufficient evidence showing that his unsatisfactory performance was the result of his age.

3.  In the absence of the facts and circumstances surrounding the applicant’s discharge proceedings, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200.  The only valid narrative reason for discharge permitted under that paragraph is "Unsatisfactory Performance.”  Furthermore, the applicant’s RE code was assigned based on the fact that he was separated for unsatisfactory performance.  He received the appropriate RE code associated with his discharge.

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.
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


ABCMR Record of Proceedings (cont)                                         AR20080005300



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