IN THE CASE OF:	  

		BOARD DATE:	        3 November 2009

		DOCKET NUMBER:  AR20090010571 


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 his reentry eligibility (RE) code be changed from RE-3 to RE-1.

2.  The applicant states that he would like to switch from his current component, the U.S. Army Reserve (USAR), to the Regular Army (RA); however, the RA is not accepting prior-service Soldiers with an RE-3 code.  He also adds that the punishment he received (reduction to private (PVT)/E-1) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was harshly unjustified given the overall circumstances.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 23 June 2002;

	b.  an unsigned/undated self-authored statement with a self-authored sequence of events document;

	c.  a copy of his DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 10 April 2002;

	d.  a copy of his DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 22 January 2002;

	e.  a copy of Orders 08-014-00019 and Orders 08-008-00022, issued by Headquarters, USAR Training Support Division (East), Birmingham, AL, on 8 and 14 January 2009;

	f.  a copy of a memorandum, dated 22 April 2003, from his former trial defense counsel;

	g.  a copy of a DA Form 2823 (Sworn Statement), dated 20 November 2001;

	h.  a copy of an undated witness statement;

	i.  copies of DA Forms 4856 (General Counseling Form), dated on miscellaneous dates; and

	j.  five letters of recommendation, dated on various dates from 2003 to 2009.

COUNSEL REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant's RE code be changed from RE-3 to RE-1.

2.  Counsel states that the applicant's outstanding service, post-service conduct, and accomplishments have been sufficiently creditable to warrant relief.  Counsel adds that the applicant had an exemplary record and made every attempt at the time to explain his circumstances.  Counsel also adds that the imposing commander's actions were unduly harsh for a Soldier's first offense with no other minor infractions.  The applicant was exercising his right to attend religious services according to the First Amendment.  Army regulations require commanders to provide for the religious needs of Soldiers.  Additionally, the applicant's absence for a few hours where several personnel, including a noncommissioned officer (NCO), had knowledge of his whereabouts and his intention to return to his duty location does not constitute an absence without leave.

3.  Counsel did not provide any additional documentary evidence in support of the applicant's request.

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 records show he enlisted in the RA on 19 June 1996.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  His records further show he executed a 4-year reenlistment in the RA on 24 June 1998.  He was promoted through the ranks to private first class (PFC)/E-3 on 1 August 1997 and specialist (SPC)/E-4 on 19 August 1998.

3.  The applicant's records also show he was awarded the Army Achievement Medal, the National Defense Service Medal, the Army Service Ribbon, the Army Good Conduct Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 22 January 2002, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ at a closed hearing for going from his appointed place of duty (guard) without authority on or about 23 September 2001.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $521.00 pay per month for 2 months (suspended until 21 July 2002), 45 days of extra duty, and 45 days of restriction.  The imposing commander directed this Article 15 be filed in the performance portion of the applicant's official military personnel file (OMPF).  The applicant elected not to appeal his punishment.

5.  On 3 April 2002, Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, published Orders 093-0017 directing the applicant's reassignment to the U.S. Army Transition Center for the purpose of separation effective 23 June 2002 and subsequent transfer to the USAR Control Group (Reinforcement) for completion of his Reserve obligation.  The orders listed his rank/grade as PV1 [PVT/E-1].

6.  The applicant's records further show he was honorably released from active duty on 23 June 2002.  The DD Form 214 he was issued shows he was released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of completion of his required active service.  This form further confirms he completed 6 years and 5 days of creditable active military service during this period of enlistment and was entitled to full separation pay.  Item 26 (Separation Code) shows the entry "LBK" and item 27 (Reentry Code) shows the entry "3."
7.  On 10 October 2002, the applicant executed a 1-year enlistment in the Washington Army National Guard (ARNG) and was assigned to the 168th Aviation Battalion, Tacoma, WA.  He was promoted to PFC/E-3 and was honorably discharged on 9 October 2003.

8.  On 13 December 2003, the applicant enlisted in the Georgia ARNG and was assigned to the 165th Quartermaster Company, Brunswick, GA.  He was promoted to SPC/E-4 and was honorably discharged on 12 December 2005.

9.  On 12 June 2007, the applicant enlisted in the USAR for a period of 3 years and has since been awarded MOS 63B (Light Wheel Mechanic), promoted to sergeant (SGT)/E-5 on 30 November 2007, and promoted to staff sergeant/E-6 on 18 August 2009.  He was also ordered to active duty for a period of 365 days effective 18 January 2008 in support of Operation Enduring Freedom.

10.  The applicant submitted several documents in support of his request as follows.

	a.  In his unsigned/undated self-authored statement, the applicant states that he has high aspirations to join the RA.  He adds that several officers and NCOs told him that his chain of command was wrong in the way the punishment was executed.  It all started when he, two junior Soldiers, and SGT H____ were on guard duty checking identification cards and/or checking security around the building.  The day before his incident, he informed the Sergeant of the Guard (SOG) that he would like to go to church with his family the next day.  The SOG told him he would relieve him or get someone else to relieve him.  Having not heard from the SOG, he attempted to contact him with no success.  He then asked SGT H____ who relieved him to go to church.  After that, an officer inquired about his whereabouts and the rest is history.  He then found out he would be receiving an Article 15 so he gathered all his evidence and told his commander that he had been given permission by a SGT who held the highest rank at the site on that day and was a part of the security detail.  Nevertheless, he was charged with failing to go at the time prescribed to his appointed place of duty.  He received the maximum punishment despite having no prior infractions and a solid record.

	b.  A copy of the DA Form 268 that shows the suspension of favorable personnel actions was removed on 10 April 2002, shortly before his separation date, thus leaving him with no time to regain a higher grade and forcing him to reach his retention control point as a PVT/E-1.

	c.  A statement, dated 22 April 2003, from his former defense counsel states that he advised the applicant of his options at the time which included refusing the Article 15 and demanding trial by a court-martial as counsel felt he had a strong case at a court-martial, but the court docket was full and he could expect significant delays.  The applicant elected to take the Article 15 so he would not delay his separation from the Army.  The defense counsel adds that he was surprised by the verdict and sentence and felt it was unusually harsh considering this was the applicant's first encounter with the UCMJ.

	d.  An unsworn statement, dated 20 November 2001, from SGT H____ states that he agreed that he and another Soldier would cover the duties of the applicant while at the desk because he could accomplish all the duties at the time.

	e.  An undated witness statement from one of the junior Soldiers present at the time states that he witnessed SGT H____ agree to allow the applicant to be relieved by himself or his own Soldier to cover for the applicant while he was in church.  He adds that he personally secured the applicant's weapon and ammunition.  At the time the applicant was relieved, the SOG could not be reached because he was running chow [delivering meals].

	f.  Several performance and/or end of month counseling statements show the applicant was performing above standards.

	g.  Five letters of recommendation from various senior officers and/or NCOs, dated on miscellaneous dates, opine that the applicant is one of the most motivated and energetic Soldiers who displays unlimited potential.  The authors add that the applicant's exceptional abilities and devotion to duty make him an asset to any organization.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation provides, in pertinent part, that a Soldier will be separated upon the expiration of enlistment or the fulfillment of the service obligation.  A Soldier being separated upon expiration of enlistment or fulfillment of the service obligation will be awarded a character of service of honorable unless the Soldier is in an entry-level status and the service is uncharacterized.

12.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the RA and the USAR.  
Table 3-1 included a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  Those individuals are ineligible unless a waiver is granted.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  Two codes are used for Soldiers released from active duty for completion of required active service under the provisions of chapter 4 of Army Regulation 635-200:

	a.  The SPD code of "LBK" is the correct code for RA Soldiers released from active duty for completion of required active service.  However, RA Soldiers who sign a Declination of Continued Service Statement (DCSS) or they are ineligible for, barred from, or otherwise denied reenlistment at the completion of their enlistment are assigned the SPD code of "LBK."

	b.  The SPD code of "MBK" is the correct code for Soldiers released from active duty for completion of required active service when eligible to reenlist or Soldiers with a DCSS in force who are released from active duty on completion of enlistment and transferred to the Reserve component to complete their military service obligation.

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers and shows the SPD code and corresponding RE code.  The SPD code of "LBK" has a corresponding RE code of "3."

15.  Army Regulation 601-280 (Army Retention Program) outlines procedures for immediate reenlistment or extension of enlistment.  It states, in pertinent part, that a Soldier may be discharged for immediate reenlistment at any point not earlier than 24 months and not later than 3 months prior to the expiration of their term of service (ETS).  Paragraph 3-8 provides for the qualifications of a Soldier for reenlistment and states, in pertinent part, that a Soldier may not exceed the retention control points as shown in table 3-1 by more than 29 days before expiration of contracted service (reenlistment or extension).  Table 3-1 shows the retention control point for a PVT/E-1 through PFC/E-3 as 3 years of total active service.

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  Nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

17.  Paragraph 3-9 of Army Regulation 27-10 contains guidance on minor offenses.  It states that generally the term "minor" includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial.  It does not include misconduct of a type that, if tried by general court-martial, could be punished by dishonorable discharge or confinement for more than 1 year.  Paragraph 3-9 further stipulates that the general minor offense rule is not hard and fast and that the circumstances of the offense might indicate that action under Article 15 would be appropriate even in a case falling outside the normal identified categories.

18.  Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  However, commanders are encouraged to consult with their NCOs on the appropriate type, duration, and limits of punishment to be imposed.  Additionally, as NCOs are often in the best position to observe a Soldier undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration.  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of 3 should be changed to 1.

2.  The evidence of records shows that the applicant accepted NJP under the provisions of Article 15 for leaving his appointed place of duty without authority.  His punishment consisted of, among other things, a reduction to PVT/E-1.  With this rank/grade, he exceeded his retention control point and could not reenlist in the RA.  He was subsequently honorably released from active duty on 23 June 2002 and was transferred to the USAR Control Group (Reinforcement) for completion of his Reserve obligation.

3.  Having exceeded his retention control point, the only available SPD code that the applicant could have been assigned under the provisions of chapter 4, Army Regulation 635-200, is the SPD code of "LBK" which is correctly shown on the applicant's DD Form 214.  The RE code associated with this type of SPD code is "3."  Therefore, the applicant received the appropriate RE code associated with his discharge.

4.  With respect to the applicant's punishment, the applicant's statement and those of SGT H____, the junior Soldier, and the former defense counsel, are noted.  Additionally, the applicant's subsequent service in the ARNG, current service in the USAR, and his desire to reenter the RA are also noted.  However, the evidence of record confirms that the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and demand trial by court-martial.  His election to accept the Article 15 was simply a choice.  Furthermore, he elected not to appeal his punishment.  Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  There is neither an error nor an injustice.

5.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief.

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)                                         AR20090010571



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ABCMR Record of Proceedings (cont)                                         AR20090010571



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