IN THE CASE OF:	  

		BOARD DATE:	  14 April 2009

		DOCKET NUMBER:  AR20080018645 


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 earlier petition to change his reentry (RE) code.  He also requests that his record be corrected by adding all training courses he completed to include North Atlantic Treaty Organization (NATO) and Special Forces (SF) training. 

2.  The applicant states, in effect, that the RE code of RE-3 listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is in error and should be changed to RE-1.  

3.  The applicant provides a Standard Form 180 (Request Pertaining to Military Records) 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 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 now provides a new issue concerning training courses that he completed that requires consideration.  

3.  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 AC88-07605, on 29 March 1989.

4.  During its original review of the case, the Board determined that the applicant was assigned the appropriate RE code of RE-3 based on the authority and reason for discharge.  

5.  The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 9 January 1979, and completed one station unit training (OSUT) at Fort Gordon, Georgia.  Upon completion of OSUT, he was awarded military occupational specialty (MOS) 72E (Telecommunications Center Operator).

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a 
DA Form 1059 (Service School, Academic Evaluation Report (AER)) which shows he attended the Special Forces Qualification Course between 17 July and 10 December 1984.  Section 13 (Performance Summary) does not indicate he achieved the course standard and Item 14 (Demonstrated Abilities) shows that he was not evaluated in any of the areas shown.  Item 16 (Comments) shows the applicant was recalled to his unit after completing phases I and II of the course.  It further shows he departed prior to his height and weight being obtained.  

7.  On 12 January 1986, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for ten specifications of being disrespectful towards a superior commissioned officer and superior noncommissioned officers, disobeying lawful orders, being drunk and disorderly, and for being incapacitated for the proper performance of his duties as a result of previous overindulgence in intoxicating liquor.  The resulting punishment was a reduction from staff sergeant (SSG) to sergeant (SGT), a forfeiture of $500.00 pay per month for two months and sixty days of restriction.

8.  The applicant’s DA Form 2-1 (Personnel Qualification Record) includes the entries “Professional Development Leadership Course (PLDC), 4 Weeks, 1982” and “Bus Drivers Course, 1 week, Fort Bragg, 1982” in Item 17 (Civilian Education and Military Schools).  It does not show the applicant completed any NATO or SF training.

9.  A DA Form 2-2 (Insert Sheet to DA Form 2-1/Record of Court Martial Conviction) on file shows that on 24 September 1986, a Special Court-Martial (SPCM) convicted the applicant of violating Article 107 of the UCMJ by making a false official statement on or about 23 June 1986.  The resulting punishment was a reprimand and a forfeiture of $200.00 per month for six months.  

10.  The applicant’s MPRJ contains no documents or orders confirming his satisfactory completion of NATO or SF training.

11.  On 16 December 1986, the applicant was honorably discharged, in the rank of SGT, after completing a total of 7 years, 11 months, and 8 days of active military service.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 4, Army Regulation 635-200, by reason of expiration term of service (ETS).

12.  On 29 February 1988, the Enlistment Eligibility Activity, the appropriate agency to act on RE code waivers at the time, informed the applicant he was ineligible to reenter the RA unless a waiver of his court-martial conviction were granted by Department of the Army.  He was informed a waiver could not be granted for 2 years and he was advised to visit the nearest Army recruiting station after 23 September 1988 for assistance.  

13.  Item 14 (Military Education) of the DD Form 214 shows he completed a 
15 week Telecommunications Center Operator Course in May 1979.  Item 26 (Separation Code) contains the entry “JBK” and Item 27 (Reenlistment Code) contains the entry “3.”

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the 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 RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  This includes Soldiers who had been convicted by a court-martial.

15.  Army Regulation 635-5-1 provides the regulatory and directive authorities, reasons, and SPD codes to be entered on the DD Form 214 for soldiers separating from active duty.  SPD code JBK is the appropriate code for members being discharged, under the provisions of chapter 4, Army Regulation 635-200, by reason of ETS who are ineligible for, barred from, or are otherwise denied reenlistment who are separated on completion of enlistment.  

16.  Army Regulation 635-5 prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The instructions for Item 14 states to enter formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  This information is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills will not be listed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that reconsideration should be given to correct his record to change his RE code from RE-3 to RE-1 was carefully considered.  However, there is insufficient evidence to support this claim.  The evidence of record confirms the applicant was convicted by SPCM for making a false official statement in November 1986, shortly before his discharge and that as a result, he was ineligible for reenlistment without a waiver at that time.  Further, based on his ineligibility for immediate reenlistment, he was properly assigned the SPD code of JBK and the RE code of RE-3.  The codes were valid codes at the time of discharge from active duty and they remain valid codes.  Therefore, absent any evidence that shows the assigned RE code of RE-3 is in error, there is an insufficient evidentiary basis to grant this portion of the requested relief or to amend the original Board decision in this matter.  

2.  The evidence of record contains an AER that shows the applicant attended the SF Qualification Course between July and December 1984; however, this document fails to confirm his successful completion of the course.  The AER indicates he was recalled to his unit after completing phases 1 and 2 and before his height and weight could be obtained.  Further, there are no other documents on file that confirm his successful completion or graduation from this course.  As a result, there is an insufficient evidentiary basis to support adding this course to Item 14 of his DD Form 214.  

3.  By regulation, only formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 are to be entered in Item 14.  The regulation stipulates that the information in Item 14 is to assist the Soldier in job placement and counseling; therefore, training courses for combat skills will not be listed.


4.  The applicant's record is also void of any entries or documents that indicate he completed any NATO training.  Further, all of the courses listed on the applicant's DA Form 2-1, with exception of PLDC and the Bus Drivers Course, appear to be combat skill courses and are not included on the DD Form 214.  As a result, there is an insufficient evidentiary basis to support adding any of these courses to Item 14 of his DD Form 214.  

5.  The evidence of record does confirm that the applicant completed PLDC, four weeks, in 1982.  Accordingly, Item 14 of his DD Form 214 should be corrected to add the entries “Primary Leadership Development Course, 4 weeks, Fort Bragg, North Carolina, 1982” and "Bus Drivers Course, 1 week, Fort Bragg, North Carolina, 1982."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 Docket Number AC88-07605, on 29 March 1989.

2.  The Board also determined that the evidence regarding the applicant’s new issue was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 14 of the applicant’s DD Form 214 by adding the entries “Professional Development Leadership Course, 4 Weeks, 1982” and Bus Drivers Course, 1 week, Fort Bragg, North Carolina, 1982; and by issuing him a correction to his DD Form 214 that reflects this change. 

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief in regard to the new issue.  As a result, 

the Board recommends denial of so much of the application that pertains to adding North Atlantic Treaty Organization, Special Forces, or any other training courses to Item 14 of his DD Form 214.  




      _______ _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)                                         AR20080018645



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ABCMR Record of Proceedings (cont)                                         AR20080018645


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