IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090005801 


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 allowed to reenter active duty so that he can complete sufficient active duty service to attain retirement. 

2.  The applicant essentially states that his ex-spouse gave false statements which caused him to be discharged after 17 1/2 years of service.  He also states that he and his ex-spouse separated in late 1998 and that when he moved on with his life and moved out, his ex-spouse gave false statements to his command stating that he was living outside of their marriage.  He further contends that he was wrongfully discharged and should have had the opportunity to complete his military career and asks for the chance to complete his military career either in the Regular Army (RA) or the Reserve.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 military records show that he enlisted in the RA on 27 July 1982.  He progressed in rank through the years with his last promotion to sergeant first class occurring on 1 September 1993.

3.  Apparently in late 1996, the applicant's wife at the time made an allegation that he was committing adultery with an enlisted woman.  An investigation was initiated, but the report, dated 7 November 1996, was unable to establish if an affair occurred [the applicant and the female Soldier, an E-4, denied any affair], but found that the applicant had "displayed poor judgment by staying at the residence of a female enlisted Soldier…who also [was] a single parent."

4.  The applicant was issued a memorandum of reprimand (MOR) on 19 December 1996 for violation of Articles 107 and 134 of the Uniform Code of Military Justice for establishing a questionable relationship with a junior enlisted Soldier and for having an intimate relationship as demonstrated by spending nights at her house, socializing with her on a familiar and personal basis, and loaning her money.  On 12 February 1997, this MOR was withdrawn after the applicant rebutted this MOR, which included his then-wife's recantation statement, and after legal counsel concluded that the MOR should be revoked as it could no longer be substantiated.  However, also on 12 February 1997, a revised MOR was issued to the applicant, which cited the applicant's "unprofessional behavior in establishing a personal relationship with a female 
E-4" and failure to set and observe high standards of conduct as the Detachment First Sergeant.  The revised MOR was directed to be filed in the applicant's Official Military Personnel File.  The applicant appealed the revised MOR to the Department of the Army (DA) Suitability and Evaluation Board, but his appeal was denied.

5.  The applicant also received a relief-for-cause Noncommissioned Officer Evaluation Report (NCOER) for the period May 1996 through December 1996 due to his questionable and discreditable relationship with a junior enlisted Soldier.  The applicant appealed his relief-for-cause NCOER to the Enlisted Special Review Board; his appeal was denied.

6.  In a memorandum, dated 6 April 1998, the applicant was informed that a 
DA-imposed bar to reenlistment under the Qualitative Management Program was imposed on him.  He appealed his DA-imposed bar to reenlistment, but on 3 December 1998 his appeal was denied.  On 31 March 1999, the applicant was discharged after completing 16 years, 8 months, and 4 days of active duty service.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) has an entry of "reduction in force," and item 27 (Reentry Code) of this document shows that he was assigned a reentry eligibility (RE) code of 4.

7.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE code 1 permits immediate reenlistment if all other criteria are met.  An RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for enlistment/
reenlistment.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be allowed to reenter active duty so that he can complete sufficient active duty to attain retirement. 

2.  The applicant’s contention that his ex-spouse gave false statements which caused him to be discharged was noted.  However, the applicant's MOR and relief-for-cause NCOER, which in turn resulted in a DA-imposed bar to reenlistment, were not the result of false statements by his ex-spouse, but rather for his questionable and discreditable relationship with a female junior enlisted Soldier.

3.  While it is commendable that the applicant wishes to return to active duty, by virtue of his RE code 4, his separation on 31 March 1999 was with a disqualification which cannot be waived and he is ineligible for enlistment.

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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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)                                         AR20090005801



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ABCMR Record of Proceedings (cont)                                         AR20090005801



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