DOCKET NUMBER:  AR20090002363 


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 a change of his reentry (RE) code of RE-4 to RE-1 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 December 2000 so he can enlist in the Texas Army National Guard (TXARNG).

2.  The applicant states he was discharged due to a reduction in force and would like the chance to continue his service towards his state and country.  He states he is already working with a recruiter and has a slot lined up as soon as he is able to reenlist.

3.  The applicant provides a copy of his DD Form 214 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's military personnel records show he enlisted in the Regular Army on 26 September 1986.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 92G (Food Service Specialist).  He reenlisted on 13 March 1989 and 16 August 1993 and continued to serve on active duty until his discharge.

3.  On 6 November 1996, the applicant received a letter of reprimand from his battalion commander for conduct unbecoming of a non-commissioned officer.

4.  On 13 November 1996, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), being disrespectful in deportment towards his first sergeant and failure to notify subordinate personnel of a scheduled pre-deployment layout.  His punishment consisted of forfeiture of $406 (suspended until 11 February 1997) and 14 days restriction.  On 
14 November 1996, he appealed his punishment and on 4 December 1996 his appeal was denied.

5.  On 27 October 1998, the applicant received a letter of reprimand signed by a general officer for submitting a falsified NCOER (non-commissioned officer evaluation report) from his previous duty assignment.

6.  On 16 December 1998, the applicant submitted a letter in response to the letter of reprimand signed by a general officer.

7.  On 30 August 1999, the Calendar Year 1999 Sergeant First Class/ANCOC (Advanced Noncommissioned Officers' Course) Promotion/Selection Board imposed a Department of the Army (DA) bar to reenlistment on the applicant under the Qualitative Management Program (QMP).

8.  The applicant's appeal of the DA bar to reenlistment was not contained in the applicant's official military personnel file.

9.  U.S. Army Enlisted Records and Evaluation Center (USAEREC) denied the appeal of the DA imposed bar to reenlistment.  USAEREC judged that the past performance and estimated potential of the applicant were not in keeping with the standards expected of the Non-Commissioned Officer Corps and that the bar would remain in effect.



10.  USAEREC directed the applicant be discharged under the provisions of paragraph 16-8 of Army Regulation 635-200 (Personnel Separations) no later than 31 December 2000 and that the narrative reason for discharge be "Reduction in Force."  USAEREC directed that the applicant be assigned a separation program designator (SPD) OF "JCC" (Reduction in Force) and an 
RE code of RE-4.

11.  On 31 December 2000, the applicant was discharged under the provisions of paragraph 16-8 of Army Regulation 635-200 by reason of the reduction of force.  He was assigned a SPD code of "JCC" and an RE code of RE-4.  He had completed 14 years, 3 months, and 5 days of active service that was characterized as honorable.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to change the reason for his discharge and his RE code.  On 28 March 2007, the ADRB reviewed and denied the applicant's request.  The ADRB determined that the narrative reason for the applicant's discharge was both proper and equitable.

13.  Army Regulation 600-200, then in effect, in pertinent part, set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement met Army standards.  It was designed to enhance quality of the career enlisted force, selectively retain the best qualified soldiers to 30 years of active duty, deny reenlistment to non-progressive and nonproductive soldiers, and encourage soldiers to maintain their eligibility for further service.  

14.  Paragraph 16-8 of Army Regulation 635-200, in effect at the time, provided that when authorization limitations, strength restrictions, or budgetary constraints require the Regular Army of Reserve Component active duty enlisted force to be reduced in number, the Secretary of the Army, or his designee, may authorize voluntary or involuntary early separation.

15.  Paragraph 3-22 (U.S. Army Reentry Eligibility (RE) Codes) of Army Regulation 601-210, then in effect, provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification.  This included anyone with a DA imposed bar to reenlistment in effect at the time of separation.

16.  Paragraph 3-27 (Correction of Army RE codes) of Army Regulation 601-210, then in effect, provided that RE codes may be changed only if they are determined to be administratively incorrect.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged and assigned an SPD code of "JCC" and an 
RE code of RE-4 as directed by USAEREC.  The applicant had a DA bar to reenlistment in effect at the time of his discharge.  Therefore, the assignment of the RE code of RE-4 is administratively correct.  

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

3.  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 that 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 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)                                         AR20090002363





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ABCMR Record of Proceedings (cont)                                         AR20090002363



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