BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090004575 


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, that he be issued a more favorable Reentry (RE) Code. 

2.  The applicant states, in effect, that the assigned RE Code of "4" amounts to double jeopardy. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a third party memorandum dated 29 March 1988, recommending that the applicant's bar to reenlistment be lifted.

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 enlisted in the Regular Army on 27 September 1977 for a period of 3 years and training as a clerk typist.  He completed his basic training at Fort Jackson, South Carolina and remained at Fort Jackson to undergo his advanced individual training (AIT) as a clerk typist.  However, he did not complete that training, he was recycled and assigned to Fort Lee, Virginia to complete AIT as a petroleum supply specialist.  He completed the training and was awarded the military occupational specialty.  He continued to serve through a series of continuous reenlistments and he was promoted to the pay grade of 
E-6 on 1 August 1985.

3.  On 20 January 1989, a memorandum was dispatched to the applicant informing him that the Calendar Year 1988 Sergeant First Class Board reviewed his Official Military Personnel File (OMPF) and determined that he was to be barred from reenlistment under the Qualitative Management Program (QMP).  The memorandum cited three noncommissioned officer evaluation reports (NCOERs) that indicated deficiencies in competence, leadership, responsibility, accountability and training.  The applicant was also advised of his right to appeal the bar to reenlistment.  The applicant appealed the bar to reenlistment and his appeal was disapproved on 5 January 1990.

4.  On 20 June 1990, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in authorized strength - qualitative early transition program.  He had served 12 years, 8 months and 24 days of total active service and he was assigned a RE Code of "4." 

5.  The applicant applied to this Board in 1991 requesting that his bar to reenlistment be voided and that he be reinstated to active duty.  The Board denied his request on 22 September 1993.

6.  Army Regulation 601-280, chapter 10, set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude and potential for advancement meet Army standards.  It is designed to (1). enhance the quality of the career enlisted force, (2) selectively retain the best qualified Soldiers to 30 years of active duty (3) deny reenlistment to nonprogressive and nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service.  The QMP consists of two major subprograms, the qualitative retention subprogram and the qualitative screening subprogram.  Under the qualitative screening subprogram, records for grades   E-5 through E-9 are regularly screened by Department of the Army promotion selection boards.  The appropriate selection boards evaluate past performances and estimate the potential of each Soldier to determine if continued service is warranted.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.

7.  Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel.  Chapter 16 covers the discharges caused by changes in service obligations.  Paragraph 16-8 applies to personnel who are separated prior to the expiration of term of service (ETS) when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced.  The Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation under the authority of title 10, U.S. Code, sections 1169 or 1171.  Early separation under this paragraph is for the convenience of the government and will be characterized as honorable.

8.  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 reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (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.

9.  A RE Code of RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as a bar to reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  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 the aforementioned requirement.  

2.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

3.  Notwithstanding the applicant’s contention that issuing him a RE Code of "4" amounts to double jeopardy, the applicable regulations indicate that he was properly assigned a RE code of “4.”

4.  Inasmuch as the applicant has failed to show through the evidence submitted or the evidence of record that the assigned RE code was in error or unjust, there appears to be no basis to grant his 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 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)                                         AR20090004575



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ABCMR Record of Proceedings (cont)                                         AR20090004575



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