IN THE CASE OF:	  

		BOARD DATE:	  29 December 2009

		DOCKET NUMBER:  AR20090010847 


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 to allow him to complete one year of additional service in order to retire.

2.  The applicant states he served honorably on active duty, in the Reserve, and in the National Guard.  There was only one negative incident during all of his periods of service.  

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), a Noncommissioned Officer Evaluation Report (NCOER), an Army Achievement Medal certificate, his Curriculum Vita, and two letters from the Petersburg Public Schools. 

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, a career Soldier, first enlisted in the Regular Army on 22 June 1972.  He served until 13 March 1975, had a two month break in service, and again enlisted in the Regular Army on 14 March 1973 with service through        11 September 1981.

3.  On 30 September 1981, he enlisted in the Army National Guard (ARNG), serving until 21 April 1983, at which time an NGB Form 22 shows he transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  His amended NGB Form 22 shows 10 years, 10 months, and 17 days of total service for pay.

4.  An NGB Form 23 (Retirement Credits Record) shows active participation from 27 July 1983 through 26 July 1990.  This report does not include his period of ARNG service noted above.

5.  On 21 November 1990, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm. 

6.  The applicant enlisted in the Regular Army effective 1 August 1991. 

7.  On 18 March 1993, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for operating a vehicle while under the influence of alcohol on 9 January 1993.  

8.  On 22 April 1993, the applicant received a Memorandum of Reprimand (MOR) for the 9 January 1993 accident while he was driving under the influence (DUI) of alcohol.  The MOR indicates there were personal injuries and destruction of property.  The imposing General Officer acknowledged this was a single infraction in a long and meritorious career.  There is a reference in the record that indicates the applicant attended the Army Alcohol Rehabilitation Program following the issuance of the MOR.

9.  On 28 April 1995, the applicant reenlisted in the Regular Army for six years.

10.  On 2 May 1995, the applicant was notified that the CY95 Master Sergeant Selection/Sergeant QMP Board, after a comprehensive review of his Official Military Personnel File (OMPF), determined that he should be barred from reenlistment.  His deficiency was shown as his MOR.  At this point, the applicant had 16 years and 7 months of active Federal service.

11.  The applicant appealed his QMP selection and his appeal was denied on 15 September 1995. 

12.  The applicant was honorably discharged 30 September 1996 under the provisions of Army Regulation 635-200, paragraph 16-8, reduction in authorized force.  His DD Form 214 shows he had 17 years, 11 months, and 15 days of active duty and 8 years, 1 month, and 20 days of inactive service.  He was assigned the Separation Program Designator (SPD) "JCC" and an RE code of "4."  He was authorized one-half separation pay. 

13.  The September 1996 DD Form 214 lists his authorized awards as the Army Commendation Medal, the Army Achievement Medal with two Oak Leaf Clusters, the Good Conduct Medal (3rd award), the National Defense Service Medal (2nd award), the Noncommissioned Officer Professional Development Ribbon with Numeral 3, the Army Service Ribbon, the Overseas Service Ribbon, the Army Reserve Component Overseas Training Ribbon, the Kuwait Liberation Medal (2nd award), the Southwest Asia Service Medal with three bronze service stars, the Expert Infantryman Badge, the Parachutist Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

14.  The record contains copies of orders and/or award certificates for four different Army Achievement Medals but only three are recorded on his DD Form 214.

15.  Also not carried forward from previous DD Forms 214 to the 30 September 1996 DD Form 214 are his award of the Expert Field Medical Badge, the Drivers and Mechanics Badge with Wheel Vehicle Bar, and the Federal Defense Forces of the Federal Republic of Germany Decoration for Performance of Military Service in Bronze [listed on earlier DD Forms 214 as the German Army Military Efficiency Award in bronze].

16.  Additionally, while serving with the ARNG he was awarded the District of Columbia National Guard Meritorious Service Medal.

17.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) to change the reason for his discharge or his RE code.  

18.  Army Regulation 635-200, paragraph 16-8 then in effect, set forth policy and prescribed procedures for early separation due to reduction in force, strength limitations, or budgetary constraints.  Soldiers who are within 2 years of qualifying for retirement per chapter 12 on the scheduled separation date will not be processed under this paragraph unless directed by the Secretary of the Army. At the time, personnel who were received a QMP bar to reenlistment could be released under this provision.

19.  Army Regulation 601-280, then in effect, set forth policy and prescribed procedures for denying reenlistment under the QMP.  This program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement met Army standards.  It was designed to enhance quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to non-progressive and nonproductive Soldiers, and encourage soldiers to maintain their eligibility for further service.  

20.  Army Regulation 601-280, chapter 10, set forth the QMP selection criteria to include, but are not limited to:

	a.  Moral or ethical conduct incompatible with the values of the NCO corps and the Army ethic,

	b.  Lack of potential to perform NCO duties in current grade,  

	c.  Decline in efficiency and performance over a continuing period, as reflected by NCOER or failure of an NCOER course;

	d.  Recent or continuing disciplinary problems, as evidenced by conviction by court-martial, nonjudicial punishment, or administrative reprimand; and 

	e.  Other discriminators such as imposition of a field commander's bar to re-enlistment, inability to meet physical fitness standards, and failure to comply with requirements of the Army body composition program. 

21.  Army Regulation 601-280, chapter 10, states Soldiers with a minimum of    17 years, 9 months of active Federal service at the time of notification of QMP selection, who choose not to appeal, will be retained to 20-year retirement eligibility upon request.   Those who appeal will also be retained to retirement eligibility upon request if the appeal is denied.  Soldiers in this category must apply for retirement to be effective no later than the first day of the month following the month in which they complete 20 years of active Federal service. 

22.  Army Regulation 635-5-1 Separation Program Designator (SPD) Codes prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214.  In pertinent part, it states that an SPD of "JCC" is an involuntary discharge due to reduction in force, strength limitations, or budgetary constraints.  At the time it was used to designate personnel released under the QMP.  It required an RE Code of "4."

23.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the Regular Army (RA), the U.S. Army Reserve (USAR), and the Army National Guard (ARNG).  Paragraph 3-22 (U.S. Army Reentry Eligibility (RE) Codes) provided that RE-4 applied to a person separated from their last period of service with a non-waivable disqualification.  This included anyone with a DA imposed bar to reenlistment in effect at the time of separation under the QMP.  

24.  The Uniform Code of Military Justice, Article 111 (Drunken Or Reckless Driving), states that any person subject to this chapter who operates any vehicle while drunk shall be punished as a court-martial may direct.  The maximum punishment for a charge that resulted in personal injury is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he served honorably on active duty, in the Reserve, and in the National Guard.  There was only one negative incident during all of his periods of service.  

2.  The applicant received an MOR and accepted NJP for the alcohol related incident.  DUIs are a serious infraction as noted by the fact that the maximum punishment for this type of infraction is a dishonorable discharge.

3.  At the time of the applicant's separation the DUI was more than sufficient reason for him to be considered for separation under the QMP and he did not have the necessary time in service at the time he was selected for release to qualify for retention to qualify for retirement.

4.  With his selection for early release under the QMP, he was automatically given a Department of the Army bar to reenlistment and discharged with an SPD code of "JCC" and an RE code of "4."  

5.  The applicant's receipt of the QMP bar and separation was consistent with the regulations in effect at the time and he was properly assigned an RE-4 based on the reason for separation.

6.  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.

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)                                         AR20090010847





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010847



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1