IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20090003831 


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, a change in his Separation Program Designator (SPD) Code so he will be eligible to participate in the Active Guard Reserve (AGR) program.

2.  The applicant states, in effect, that he is currently a member of the Maryland Army National Guard (MDARNG) in good standing.  The applicant continues that he has an outstanding record with the Army National Guard and would greatly appreciate an opportunity to complete his career as an active duty Soldier in the MDARNG.  The applicant further states that the SPD that he received when he was discharged from active duty disqualifies him from eligibility to participate in the AGR program.  The applicant contends that his SPD should be changed because he completed his initial enlistment without incident and the characterization of his overall service was honorable.

3.  The applicant provides copies of a DD form 214 (Certificate of Release or Discharge from Active Duty), two Memoranda, and five DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) as documentary evidence in support of this 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 record shows that he enlisted in the Regular Army on 27 December 1984.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Specialist).  The applicant served honorably until 4 May 1988 and was approved for immediate reenlistment.  He continued to serve until he was discharged on 16 April 1990.  The applicant held the rank of private first class (PFC)/pay grade E-3 at the time of his discharge.  The applicant served on active duty for a period of 5 years,
3 months, and 20 days.  On 26 September 1997, the applicant enlisted in the MDARNG.

3.  The complete facts and circumstances of the applicant's separation are not available for review in the applicant's record.  However, there is sufficient documentation to render a fair and impartial decision in this case.

4.  Item 25 (Separation Authority) of the DD Form 214 issued to the applicant upon separation indicates he was discharged under the provisions of paragraph 16-5b of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of locally imposed bar to reenlistment.  This form also shows that based on the authority and reason for his discharge, he was assigned an SPD code of KGF in Item 26 (Separation Code) and an RE code of 3 in Item 27 (Reentry Code).

5.  Section VI (Remarks) of DD Form 1966/3 (Record of Military Processing - Armed Forces of the United States), dated 26 September 1997, shows the applicant was granted a waiver for enlistment into the MDARNG.  The reason cited for granting the waiver was "Locally Imposed Bar."

6.  The applicant provides five DA Forms 2166-8 rendered for the period covering November 2004 through October 2008, which essentially show that he successfully accomplished his duties and responsibilities and that his superiors considered his overall potential for promotion and/or service in positions of greater responsibility to be among the best.

7.  The applicant provides MDARNG, Headquarters, 29th Combat Aviation Brigade, Aberdeen Proving Ground-EA (Edgewood Area), Maryland, Memorandum, dated 12 December 2008, Subject:  Recommendation of [applicant's rank and name].  This memorandum was rendered by the unit's S-4 (Logistics Officer) as a recommendation for the applicant to receive favorable consideration by the AGR Selection Board.

8.  The applicant provides MDARNG, Headquarters, 29th Combat Aviation Brigade, Aberdeen Proving Ground-EA (Edgewood Area), Memorandum, dated 19 December 2008, Subject:  [applicant's rank, name, and social security number].  This memorandum was rendered by the unit's SIDPERS (Standard Installation/Division Personnel System) Analyst and shows that at the time, the applicant had no unfavorable personnel actions against him, met the standards for the Army Physical Fitness Test, and met the Army's height and weight standards.

9.  Army Regulation 601-280 (Total Army Retention Program), at the time, governed bars to reenlistment.  Essentially, this regulation provided that a Soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the Soldier’s chain of command could initiate a bar to reenlistment.  Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the Soldier so he or she could submit a statement in his or her own behalf.  Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority.  The regulation required that the approval authority for a Soldier with less than 10 years active Federal service at date of bar initiation must be personally approved by the first commander in the rank of lieutenant colonel or above in the Soldier's chain of command, or the commander exercising Special Court Martial Convening Authority, whichever is in the most direct line to the Soldier (unless this is the same commander who initiated the action).  The personal signature of the approving or disapproving authority was required.  The regulation also provided that the Soldier could appeal the bar to reenlistment and that final approval of appeals would be at least one approval level higher than the original bar approval authority. 

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 16 established policy and prescribed the requirements and procedures for early separation of personnel denied reenlistment due to a locally imposed bar to reenlistment.  Paragraph
16-5b provided that Soldiers who perceived that they would be unable to overcome a locally imposed bar to reenlistment could apply for immediate discharge.  The service of a Soldier discharged per this paragraph was normally 

characterized as honorable.  The Soldier's voluntary request for early separation was required to include the following statement:

	"I understand that if my request for separation before my normal ETS (Expiration Term of Service) is approved, it will be for my own convenience.  If I am separated, I understand that recoupment of unearned portions of Enlistment Bonus (EB)/Selective Reenlistment Bonus (SRB) is required.  I also understand that once separated, I will not be permitted to reenlist at a later date."

11.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, 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.  It stated, in pertinent part, that the SPD code KGF was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-5b due to a locally imposed bar to reenlistment.  The SPD/RE Code Cross Reference Table indicates that RE code 3 is the proper code to assign members separated with SPD code KGF.

12.  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 United States Army Reserve (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.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.

13.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program) prescribes the policy and procedures for the administration of the AGR Program. It provides Army policy for the selection, utilization, and administration of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) Soldiers ordered to active duty pursuant to Title 10, U.S. Code.  This regulation also prescribes Army policy for the selection, utilization, and administration of ARNGUS Soldiers ordered to full-time National Guard duty (FTNGD) pursuant to 32 USC section 502(f) for the purpose of organizing, administering, recruiting, instructing, or training the Reserve Components.  The objective of the AGR Program is to provide highly qualified officers, warrant officers, and enlisted Soldiers to meet the full-time support requirements for ARNGUS and USAR projects and programs.  This regulation, in pertinent part, also provides guidance for obtaining the process and procedures for selecting and approving Soldiers for subsequent assignments in the AGR Program. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD Code should be changed so he will be eligible to participate in the AGR program was carefully considered and found to lack merit.

2.  Although the applicant completed his initial period of enlistment without incident, a local bar to reenlistment was imposed as a result of his performance and/or behavior during his second enlistment.

3.  Discharges under the provisions of paragraph 16-5b of Army Regulation
635-200, in effect at the time of the applicant's separation, were voluntary requests.  The regulation provided that subsequent to the imposition of a local bar to reenlistment, a Soldier had to voluntarily submit a request for early separation which, in pertinent part, included a statement of their understanding that they would not be allowed to reenlist at a later date.  Based on administrative regularity and in the absence of evidence to the contrary, it is presumed that the applicant requested and was approved for early separation due to the imposition of a local bar to reenlistment.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  Evidence shows the applicant was properly assigned the appropriate SPD Code of KGF and RE Code of 3 at the time of his discharge.

5.  Evidence also shows that the applicant was subsequently granted a waiver of his RE Code and allowed to enlist in the MDARNG.  The applicant may be able to obtain an exception to policy from the MDARNG or National Guard Bureau for admission into the AGR program based upon his performance since becoming a member of their ranks and the current needs of the program.

6.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his request.

7.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for participation in special programs.


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)                                         AR20090003831



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ABCMR Record of Proceedings (cont)                                         AR20090003831



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