IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080015580 


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 request to change his Reenlistment (RE) Code to a "1" and to remove the statement from his Personnel Qualification Record (DA Form 2-1) indicating that he was "Not Recommended for Further Service," and that he be provided the documents that indicate that he was aware of the actions mentioned in the previous Record of Proceedings.

2.  The applicant states, in effect, that the Board previously indicated that he was aware that he was being barred from reenlistment and chose not to appeal the action; however, it did not provide any documents to support that statement.  He goes on to state that doctors concluded that his weight was fine for his build and that he was all muscle; however, the Board states that he failed to meet medically established weight loss standards, which makes no sense to him because the medical staff said there was no problem and his weight never prevented him from doing his job.  He also states that the Board stated that several actions were taken by commanders to bar him from reenlistment; however, he was unaware of any such documents and the Board did not provide them to him to support their comments.  He continues by stating that he voluntarily terminated jump status to get out of his unit and be able to work in his military occupational specialty (MOS); however, it had nothing to do with his weight.  Additionally, he contends that unsubstantiated claims should not be used as the source of evidence in his issues.

3.  The applicant provides no additional documents with 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 AR20070005971, on 28 August 2007.

2.  The applicant enlisted in the Regular Army (RA) in St. Louis, Missouri on
27 July 1978 for a period of 3 years, airborne training, training as a fire support specialist, and assignment to the 82nd Airborne Division.

3.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and his airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina.

4.  In November 1979, the applicant was entered into the unit's weight control program with a goal weight of 197 pounds.  He weighed 201 pounds at that time.  In December 1979, he weighed 200 pounds.  His missed his weigh-in in January 1980 and in February 1980 he weighed 207 pounds.  In March 1980 he weighed 206 pounds and in April 1980 he again missed weigh-in.  In May 1980, he weighed 211 pounds.

5.  On 3 June 1980, the applicant's battery commander initiated action to bar the applicant from reenlistment.  He cited the applicant's failure to meet medically established weight loss goals within the 90-day time frame prescribed by 82nd Airborne Division Supplement 1 to Army Regulation 600-9 as the basis for his recommendation.  He further stated that the applicant's conduct and efficiency were otherwise exemplary.

6.  On the same date (3 June 1980) the applicant acknowledged, by his initials and signature, that he had been furnished a copy of the commander's recommendation to bar him from reenlistment, that he had been counseled and advised of the basis for the action, and that he elected not to submit a statement in his own behalf.

7.  The battalion commander recommended approval of the recommendation to bar the applicant from reenlistment and forwarded the recommendation to the brigade commander.

8.  On 5 June 1980, the brigade commander approved the bar to reenlistment and directed that it be filed in the applicant's records and that a remark be placed in the applicant's records indicating that he was "Not Recommended for further 
service."  He also directed that the applicant be advised that he was barred from reenlistment and that he had the right to appeal within 15 days, through his chain of command.  There is no evidence showing that the applicant ever appealed the bar to reenlistment.  Additionally, there is no evidence in the available record to show that he was deemed by medical personnel at Fort Bragg to meet the weight standards under Army Regulation 600-9.

9.  The applicant voluntarily terminated his airborne status on 28 August 1980 and was reassigned to Fort Knox, Kentucky on 1 October 1980, for duty as a fire support specialist.

10.  On 9 February 1981, the applicant reviewed his military personnel records jacket (MPRJ).

11.  On 23 June 1981, the applicant's commander reviewed the applicant's bar to reenlistment and determined that it should not be removed.

12.  On 26 July 1981, the applicant was honorably released from active duty due to completion of required service (ETS [expiration of term of service]).  He had served 3 years of total active service and was issued a Separation Program Designator (SPD) Code of LBK and an RE Code of "3."  He was honorably discharged from the United States Army Reserve (USAR) on 6 July 1983 upon completion of his statutory service obligation.

13.  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.  The SPD code of LBK is to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.

14.  Army Regulation 601-210 prescribes 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 and includes a list of armed forces RE Codes including RA RE codes.  RE Code 1 applies to persons completing their term of service who are considered qualified to reenter the U.S. Army.  RE Code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
15.  Army Regulation 640-2-1, in effect at the time, served as the authority for the preparation and maintenance of the Personnel Qualification Record.  Paragraph 1-35g provides, in pertinent part, that the custodian of the MPRJ will enter in block 4 of the DA Form 2-1, under "Assignment Considerations," the remark "Not Recommended for Further Service" when a bar to reenlistment has been approved by the appropriate authority.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Board used unsubstantiated information to deny his request has been considered and found to lack merit.  The applicant's records clearly substantiate the evidence of record and conclusions cited in the previous Record of Proceedings.  Copies of those documents will be provided to the applicant with these proceedings.

2.  However, it is noted that the applicant's claims, both in his previous application and his current application, are unsubstantiated by the evidence submitted with his application and the evidence of record.  His signature and initials on the documents in question leave no doubt as to what happened in his case or as to whether or not his rights were protected.

3.  Although the applicant may not have remembered what occurred in his case, the facts and the documentary evidence in his records clearly show that he was aware that he was being barred from reenlistment and the reasons for which that action was being taken, to include the entry on his DA Form 2-1.  Therefore, in the absence of evidence to the contrary, there appears to be no basis to grant his request to change his RE Code from RE-3 to RE-1.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AR20070005971, dated 28 August 2007.



      ________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)                                         AR20080015580



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ABCMR Record of Proceedings (cont)                                         AR20080015580



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