IN THE CASE OF:	  

		BOARD DATE:	    29 April 2010

		DOCKET NUMBER:  AR20090011456 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

	a.  Item 26 (Separation Code) from "LBK" to "MBK,"

	b.  Item 27 (Reentry (RE) Code) from "3" to "1," and

	c.  item 29 (Dates of Time Lost During This Period) to reflect "None."

2.  The applicant states that he was serving in Iraq when he received an emergency Red Cross Message regarding his ill wife.  He went on emergency leave and he was subsequently reported in an absent without leave (AWOL) status.  However, he maintained contact and spoke with the rear detachment commander who assured him that he knew of his whereabouts.  He later met with his battalion commander who counseled him and dismissed the charges as long as he made up the 120 days of lost time and stayed out of trouble.  His pay was then returned to him.  His original expiration term of service (ETS) was
26 October 2007; however, he stayed on post 120 days beyond his original ETS, until 22 December 2007.  He wanted to stay in the Army but did not do so because he also has a sick child.  He would now like to reenter military service but the errors on his DD Form 214 prevent him from doing so.

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

* A copy of his DD Form 214, dated 22 December 2007
* A copy of a REDD (Reenlistment Eligibility Data Display) Request, dated 23 June 2009
* A copy of his Enlisted Record Brief (ERB), dated 13 November 2007
* A copy of his DD Form 4 (Enlistment/Reenlistment Document), dated 12 January 2004
* Copies of various memoranda authorizing him release from theater
* A copy of his DA Form 31 (Request and Authority for Leave), dated 16 April 2007
* A copy of a memorandum, dated 11 May 2007, Subject: Assumption of Command Orders
* A copy of a memorandum, dated 4 September 2007, Subject: Soldier Assignment
* A copy of his Defense Finance and Accounting Service (DFAS) Form 702 (Military Leave and Earnings Statement (LES)) for the period covering
1-30 September 2007
* Copies of various letters and memoranda regarding his response to the nonjudicial punishment (NJP) action
* Copies of DA Forms 4856 (Developmental Counseling Form), dated 25 July 2007 and 20 September 2007
* A copy of his release from active duty orders, dated 13 November 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years and 19 weeks on 16 June 2004, thus establishing his ETS date as 27 October 2007.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Supply Specialist).  The highest rank/grade he attained during this period of military service was specialist (SPC)/E-4.  He was assigned to Company A, 5th Battalion,
20th Infantry, Fort Lewis, WA.

2.  His records also show he served in Iraq from 19 June 2006 to 25 September 2007.  His awards and decorations include the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, and Overseas Service Ribbon.

3.  On 15 April 2007, his battalion commander initiated a request to authorize him departure from theater on emergency leave due to his wife's medical condition and temporary child care.  He was subsequently authorized 15 days of emergency leave from 18 April 2007 to 1 May 2007.


4.  On 17 September 2007, he accepted NJP from his battalion commander under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 17 May 2007 through 13 July 2007.  His punishment consisted of a reduction to private (PV1)/E-1 (suspended until 17 January 2008), a forfeiture of $650.00 pay per month for 2 months (suspended until 17 January 2008), and 45 days of extra duty (suspended until 17 January 2008).  He elected not to appeal his punishment.

5.  On 13 November 2007, the Installation Management Command, Fort Lewis, published Orders 317-0038 directing his reassignment to the U.S. Army Transition Point for the purpose of separation, effective 22 December 2007, and subsequent transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

6.  He was honorably released from active duty on 22 December 2007.  The DD Form 214 he was issued shows he was released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.  This form further confirms he completed 3 years,
4 months, and 10 days of creditable active military service during this period of enlistment.  Item 26 of this form shows the entry "LBK," item 27 shows the entry "RE-3," and item 29 shows he had lost time under Title 10, U.S. Code, section 972 from 17 May 2007 to 13 July 2007.

7.  He submitted the following documents:

	a.  A copy of a letter, dated 5 April 2007, from his wife, addressed to "whom it may concern," wherein she chronicled her medical condition and the challenges associated with caring for her children in the absence of her husband who was deployed.  She also contacted the American Red Cross and was notified that an emergency message would go out to her husband's unit regarding the need for him to be present back home.

	b.  A statement, dated 5 May 2007, from his wife's doctor wherein the doctor stated that the applicant's wife was diagnosed with severe post-partum depression and that she did not have any family or support system to help her.

	c.  A copy of an email, dated 7 May 2007, wherein he chronicled the difficulties encountered by his wife and requested a leave extension.  He also stated that if he returned to Iraq he would be distracted with the thoughts of his ill wife and children and requested to stay back in the rear.  However, there is no indication that he was authorized an extension of his leave or approval to stay in the rear.
	d.  A memorandum, dated 11 May 2007, showing Major (MAJ) E---s H. B----s assumed command of the Rear Detachment, 5th Battalion, 20th Infantry, Fort Lewis, from captain (CPT) N----n.

	e.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 30 July 2007, showing MAJ B----s, the rear detachment commander, initiated a flag against him, effective 30 July 2007, for adverse action.

	f.  A copy of his ERB, dated 13 November 2007, that shows, among other entries, that a flag was initiated against him on 17 May 2007 for adverse action.

	g.  A memorandum, dated 4 September 2007, wherein MAJ B----s stated that the applicant deployed to Iraq on 26 June 2006.  He was on emergency leave from 18 April to 13 July 2007; he was not in an AWOL status.

	h.  A copy of a DA Form 4856, dated 25 July 2007, showing the applicant was counseled by his section leader for being AWOL from 17 May 2007 to 13 July 2007.

	i.  A copy of a memorandum, dated 17 September 2007, from his civilian attorney who argued that he was not in an AWOL status and that he was in constant communication with the former rear detachment commander,
CPT N----n, who authorized him an extension of his leave.

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

9.  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 into the RA and the U.S. Army Reserve (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 disqualification is waivable.  They are ineligible unless a waiver is granted.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) states that an applicant who, during his or her last period of service, was AWOL or had lost time of 30 days or more regardless of the type of separation or RE Code will be required to have a waiver for enlistment.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the 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 Army Regulation 635-200, chapter 4:

* The "LBK" SPD code is the correct code for Soldiers involuntarily released from active duty for completion of required active service under the provisions of Army Regulation 635-200, chapter 4.  Except for Soldiers with a Declination of Continued Service Statement (DCCS), the LBK code is used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment. 

*  The "MBK" SPD code is the correct code for Soldiers voluntarily released from active duty for completion of required active service under the provisions of Army Regulation 635-200, chapter 4.  The MBK code is used for RA Soldiers eligible to reenlist or with a DCSS in force who are released from active duty on completion of enlistment and transferred to the Reserve components to complete his/her military service obligation.

12.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table, in effect at the time of his release from active duty, shows the SPD code of "LBK" has a corresponding RE code of "3."

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Item 29 of the DD Form 214 shows time lost.  Verify that time lost as indicated by DFAS agencies has been subtracted from Net Active Service This Period (block 12c) if the lost time was not "made good."  If the ETS was adjusted as a result of lost time and the Soldier served until ETS, the lost time was "made good."  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits.  However, the Army preserves a record (even after time is made up) to explain which service between date of entry on active duty (block 12a) and separation date (block 12b) is creditable service.  For enlisted Soldiers, item 29 shows inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation and RE codes should be corrected and his lost time should be removed.

2.  The evidence of record confirms he was authorized emergency leave from 18 April 2007 to 1 May 2007.  There is no documentary evidence that he was authorized an extension of his leave or to stay back in the rear subsequent to the expiration of his leave.  However, it appears that his chain of command was supportive of his situation and may have granted a 15-day extension of his leave through 16 May 2007 as evidenced by the flag shown on his ERB, effective 17 May 2007. 

3.  It is unclear what he did between 17 May 2007 and 13 July 2007.  He was not in Iraq; he was not at Fort Lewis; and he did not have an approved extension of his leave.  Accordingly, he was reported in an AWOL status and he subsequently accepted NJP under Article 15 of the UCMJ for his absence.

4.  His original ETS date was 27 October 2007.  He had lost time.  He was required to serve this lost time and he did so through 22 December 2007.  However, although he served beyond his original ETS date, the fact remains that he had lost time during this period of enlistment, which is correctly shown in item 29 of his DD Form 214.

5.  This lost time would have barred him from reenlisting without a waiver as it was a disqualifying factor; thus, he was correctly assigned the SPD code of "LBK."  The RE code associated with this type of SPD code is RE-3; therefore, he was also assigned the appropriate RE code of "3."

6.  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.  He did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to his requested 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)                                         AR20090011456



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ABCMR Record of Proceedings (cont)                                         AR20090011456



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