IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080006498 


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, that his Reentry (RE) Code be changed from RE-4 to RE-3.

2.  The applicant states, in effect, that he was on active duty for a total of 13 years and 11 months and would like to enlist to finish his career in the Reserve.  He also states that he received an RE-4 for Reduction in Force.  He was not discharged for medical reasons of any kind.  He would like the opportunity to join once again because he feels that he can teach and pass-down his knowledge to young Soldiers.  He is willing to relinquish his pay grade of E-7 to meet the needs of the United States Army Reserve (USAR).  

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel has remained silent and has provided no additional documentation in support of the applicant's 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 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 Regular Army, in pay grade E-1, on 16 April 1985.  He completed basic armor training and was awarded military occupational specialty (MOS) 19K (Armor Crewman).  He was promoted to pay grade E-7 on 1 September 1995.

3.  On 21 January 1997, he was issued a General Officer Memorandum of Reprimand for operating a motor vehicle while intoxicated on 7 December 1996.  On the same day, the applicant acknowledged receipt of the General Officer Memorandum of Reprimand and elected to submit a statement in his own behalf.

4.  After review of the General Officer Memorandum of Reprimand, the applicant's chain of command stated that the applicant had 12 years of service and knew the rules.  Everyone in the battalion understood the drinking and driving guidance and failures to comply would not be tolerated.  It was recommended the General Officer Memorandum of Reprimand be permanently filed in the applicant's official military personnel file.  

5.  On 29 January 1997, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for operating a passenger car while intoxicated on 7 December 1996.  The punishment included a forfeiture of $1.009.00 pay per month for two months, 45 days extra duty (suspended and would be automatically remitted if not vacated before 28 July 1997), and 45 days restriction.  The applicant appealed the punishment and his appeal was denied 26 February 1997.

6.  In his statement, dated 8 February 1997, the applicant requested his General Officer Memorandum of Reprimand be placed in his local unit file.  He stated that he had made the biggest mistake of his Army career.  He did not put teeth in his command philosophy and he should be held accountable for his actions.  He let his family, Soldiers, chain of command, and worst, himself down for his decision on 6 December 1996.  He further stated, in effect, that he was currently enrolled in a program which allowed him to understand the effects of alcohol and he was learning from this program.  

7.  On 26 February 1997, the applicant's commander, a major general, directed the General Officer Memorandum of Reprimand be filed permanently in the applicant's official military personnel file.  

8.  The applicant reenlisted in the Regular Army on 17 September 1997, for 6 years.

9.  On 6 April 1998, a HQDA Bar to Reenlistment under the Qualitative Management Program was imposed on the applicant.  The memorandum stated that the Calendar Year 1998 Master Sergeant Promotion Board, after a comprehensive review of his official military personnel file, determined that he was to be barred from reenlistment.  The applicant was provided a list of those documents that contributed most to the board's decision to bar him from reenlistment.  The applicant was also advised of his options, his right to appeal the bar, and the procedures for an appeal.  He was further advised that if his appeal was denied, he would be separated within 90 days of the notification of denial.

10.  On 8 May 1998, the applicant's appeal to the bar was disapproved.  It was directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 16-8 and must occur no later than 31 March 1999.  It was also directed that the narrative reason for separation to be placed on the DD Form 214 was "Reduction in Force," the RE Code was "RE-4, " the Separation Program Designator Code was "JCC," and his service was to be characterized as "Honorable."

11.  The applicant was honorably discharged on 31 March 1999, in pay grade 
E-7, under the provisions of Army Regulation 635-200, paragraph 16-8, for Reduction in Force.  He was credited with 13 years, 11 months, and 15 days total active service.  Item 26 (Separation Code), of his DD Form 214 states "JCC" and Item 27 (RE Code) states "RE-4."

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of the regulation specified that Soldiers could be separated prior to the expiration of their enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budget constraints required the Regular Army enlisted force to be reduced in number.  The service of Soldiers separated under this paragraph would be characterized as honorable.  

13.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the USAR.  The regulation provided that prior to discharge or release from 

active duty, individuals would be assigned RE Codes, based on their service 
records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a list of Armed Forces reentry codes, including RA RE Codes.  Chapter 3-10, also provided that RE Codes could be changed only if they are determined to be administratively incorrect.  

14.  RE-4 applies to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE Code 4 are ineligible for enlistment.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

15.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD to be used for these stated reasons.  The regulation shows that the SPD for "JCC," as shown on the applicant’s DD Form 214, was appropriate for a Reduction in Force separation and that the authority for discharge under this SPD was Army Regulation 635-200, paragraph 16-8.

16.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JCC" had a corresponding RE Code of "4."   

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code 4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he now seeks.  

2.  The evidence shows that on 6 April 1998, he was barred from reenlistment under the Qualitative Management Program.  The applicant appealed; however, his appeal was disapproved on 8 May 1998.  The applicant was honorably discharged on 31 March 1999, under Army Regulation 635-200, paragraph 16-8, for Reduction in Force.  A RE Code of "4" was applied to his DD Form 214.  

3.  The applicant contends, in effect, his RE Code 4 should be changed because he would like to enlist and finish his career in the Reserve.  The RE code is consistent with the basis for his separation and in this case there is no basis to 

correct the existing codes.  The applicant has failed to show, through the 
evidence submitted with his application or the evidence of record, that his discharge which resulted in his receiving an RE Code of RE "4" was in error or unjust.  

4.  The evidence of record also confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080006498



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ABCMR Record of Proceedings (cont)                                         AR20080006498


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