IN THE CASE OF:	  

		BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007320 


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 that the Reenlistment Eligibility (RE) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from “4” to "1."

2.  The applicant states that RE code of 4 does not reflect his almost 11 years of exemplary service and the numerous awards and excellent evaluation reports he received.  Additionally, he maintains that he has greatly matured in the last 14 years and is continuing his education in the Christian ministry.  He also maintains that he is very involved in the youth ministry and adult dependency counseling.  

3.  The applicant does not provide any additional documents in support of his appeal. 

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 
8 April 1987.  He completed the necessary training and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  His highest pay grade held was E-5.

3.  The applicant served continuously on active duty until he was notified by memorandum dated 2 May 1995, signed by his commander, that the CY95 Master Sergeant Selection/Sergeant Qualitative Management Program (QMP) Board, after a comprehensive review of his official military personnel file (OMPF), determined that he was to be barred from reenlistment.  The memorandum identified his Enlisted Evaluation Report (EER) for the rating period of February 1994 to November 1994 as the basis for his bar to reenlistment.

4.  On 19 June 1995, the applicant was counseled concerning the results of the QMP Board and his options.  The applicant signed the form acknowledging receipt of the action and electing not to submit an appeal.

5.  The applicant’s DD Form 214 shows he was separated with an Honorable Discharge Certificate, on 11 August 1995, under the provisions of chapter 16-8, Army Regulation 635-200.  The narrative reason for separation is listed as "Reduction in Force."  Item 26 shows he was assigned a Separation Program Designator (SPD) code of "JCC" and item 27 shows his RE code as "4."  

6.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  Soldiers separated under this paragraph will be characterized as honorable.

7.  Army Regulation 601-280 (Army Retention Program) paragraph 10-5 governs screening procedures and states, in pertinent part, that appropriate Department of the Army Selection Boards will review the performance portion of the OMPF, the DA Form 2A (Personnel Qualification Record Part-I) and DA Form 2-1 (Personnel Qualification Record Part-II), and other authorized documents.  From these documents, the board will evaluate past performance and estimate the potential of each service member to determine if continued service is warranted.



8.  Army Regulation 601-280, paragraph 10-8 provides that a Soldier may appeal the bar to reenlistment imposed under QMP based on improved performance and/or material error in the Soldier’s record when reviewed by the selection board.  The appeal must be submitted within 45 days of completion of the Statement of Option and will include substantive comments on the Soldier’s performance and potential by each member of the chain of command.  Paragraph 10-10 provides that the appeal is considered by the QMP Appeals Board normally conducted in conjunction with Centralized Enlisted Selection Boards.  The QMP Appeals Board will consider the Soldier’s potential for future service and promotion; review the Soldier’s complete record “de novo”; and notify the Soldier’s commander (lieutenant colonel or above) of the results of the appeal.

9.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  This regulation states, in pertinent part, that SPD code "JCC" applies to HQDA messages or other directives announcing voluntarily or involuntarily early separation programs due to reduction in force.  

10.  Additionally, Military Personnel Memorandum Number 93-4, dated
20 September 1993 specifies that RE-4 will be assigned to anyone separated with a Department of the Army imposed bar to reenlistment. 

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. 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-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of “4” indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The Department of the Army Selection Board reviewed the performance portion of the applicant’s OMPF and other authorized documents to evaluate his past performance and to estimate his potential for continued service.  The CY96 Master Sergeant Selection/Sergeant QMP Board identified the applicant's EER for the rating period of February 1994 to November 1994 as the basis for his bar to reenlistment.  The applicant was properly notified of his DA bar to reenlistment and afforded the opportunity to appeal.  However, he elected not to appeal.


2.  At the time of the applicant's discharge he had a DA imposed bar to reenlistment in effect.  Therefore, he was assigned an RE code of 4 which is consistent with the reason for separation.  The applicant has failed to show that his assigned RE code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code.

3.  Additionally, the fact that the applicant states that he has matured and is currently involved with the youth ministry and adult dependency counseling is commendable.  However, good post-service conduct alone is not a basis for changing his RE code. 

4.  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 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)                                         AR20090007320





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ABCMR Record of Proceedings (cont)                                         AR20090007320



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