IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080015578 


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, reconsideration of his previous request to change his reentry eligibility (RE) code to a RE code which will allow reenlistment.  

2.  The applicant states, in effect, that he made up his time when he completed his service obligation.  He should not be punished twice for being absent without leave (AWOL).  He states that in 1973, about half way through basic training, he was injured.  He fractured his hip and he was told that he could have gotten a medical discharge.  He states that he went through so much humiliation after he was injured that he was sent to California to complete his advanced individual training.  

3.  The applicant states, in effect, that his mother and father are both deceased and they both knew he had physical and emotional trauma due to alcoholism and drug addiction.  He states that he has filed a claim for disability; however, his paperwork is still in Muskogee, Oklahoma.  He states that he was told by a Muskogee Army recruiter that his medical records were destroyed.  He believes that he has been discriminated against because he is an American Indian who filed for disability compensation.  He states that more American Indians have died than any other ethnic group during the present and past wars.  The applicant's statements consist of new contentions not previously considered by the Board.


4.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006945, on 8 July 2008.

2.  On 13 April 1973, the applicant enlisted in the Regular Army (RA) in Oklahoma City, Oklahoma, for 3 years, in the pay grade of E-1.  He successfully completed his training as a unit clerk.

3.  The applicant was promoted to the pay grade of E-2 on 12 August 1973.

4.  Nonjudicial punishment was imposed against the applicant on 2 October 1973, for being AWOL from 13 September 1973 until 28 September 1973.  The United States Department of Justice Federal Bureau of Investigation (FBI) Report shows that he was arrested while he was AWOL on 23 September 1973 for burglary of an automobile.  His punishment consisted of a reduction in pay grade and a forfeiture of pay.

5.  The Department of Justice FBI Report shows the applicant was arrested by civil authorities on 28 June 1974 for larceny of an automobile.  His records show that the civilian charges against him were dropped after a settlement with the complainant.  His records also show that his pass privileges were revoked for 
14 days for his unbecoming behavior.

6.  On 27 April 1976, the applicant was honorably released from active duty (REFRAD) under the provisions of chapter 2, Army Regulation 635-200 at the expiration of his term of service and he was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his service obligation.  He had completed 3 years of total active service.  

7.  The Report of Separation from Active Duty (DD Form 214) that he was issued at the time of his REFRAD shows he was assigned an a separation program designator (SPD) code of LBK and an RE code of RE-3B.

8.  Army Regulation 635-5-1 (SPD Codes), then in effect, provided 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.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) established RE Codes to be assigned for each SPD code.  

9.  A separation code of "LBK" was used for Regular Army Soldiers eligible to reenlist who were released from active duty on completion of enlistment and transferred to the Reserve Component to complete a military service obligation.  The SPD/RE Code Cross Reference Table shows that RE codes RE-1 and RE-3 were the applicable RE codes assigned for individually voluntarily REFRAD at the completion of enlistment and transferred to the Reserve Component to complete military service obligation.  

10.  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 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the 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.

11.  An RE-3 code was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment; had signed a Declination of Continued Service Statement (DCSS); had met his or her retention control point (established in Army Regulation 608-280); or confinement; or had an Immediate Reenlistment Prohibition Code.  An RE code of RE-3B was entered for Soldiers who had lost time during their last period of service.

12.  Army Regulation 635-5 is the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect an individual’s service as it exists at the time of his discharge or REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned an RE code in accordance with the applicable regulation.  

2.  His new contentions have been noted.  Although his DD Form 214 indicates that he completed 3 years of total active service in accordance with the enlistment contract, he had 15 days of lost time due to being AWOL and this information is properly annotated on his DD Form 214.

3.  The applicant's contentions regarding his claim for disability have also been noted.  However, it is not a basis for changing the RE code that he was assigned at the time of his REFRAD.  His DD Form 214 was prepared to reflect his service as it existed at the time of his REFRAD and as such, he was furnished an RE-3B code to show that during his enlistment he had lost time.

4.  There is no evidence in the available record, nor has the applicant submitted any evidence to show that he attempted to reenlist in 1976 and that he was told that his records were destroyed.  There is also no evidence in the available record that shows that he suffered from physical and emotional trauma while he was in the Army.  His records show that the RE code that he was assigned was proper and he has provided insufficient evidence and/or argument to the contrary.

5.  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 this requirement.

6.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080006945, dated 8 July 2008.




      _______ _ XXX  _______   ___
               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)                                         AR20080015578



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ABCMR Record of Proceedings (cont)                                         AR20080015578



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