IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013927 


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 a "3."

2.  The applicant states there was a change in policy in 2007/2008 for personnel discharged due to downsizing in 1995.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 served on active duty in the Regular Army from 10 December 1983 through 27 December 1995.
3.  On 28 August 1994, the applicant received a general officer memorandum of reprimand (GOMOR) for driving under the influence of alcohol (DUI).  His blood alcohol level was reported as .17 percent, violating the legal limit of .10 percent.

4.  On 8 September 1995, the applicant was notified that the 1995 Sergeant First Class/Advanced Noncommissioned Officer Course Promotion/Selection Board determined that he should be barred from reenlistment under the Qualitative Management Program (QMP).  The documentation used by the board to document his areas of deficiency relates to the DUI incident.

5.  The bar to reenlistment was imposed on 25 September 1995.  The applicant did not appeal the GOMOR or the bar to reenlistment.
 
6.  The applicant was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8, by reason of a reduction in force on 27 December 1995 with a separation program designator (SPD) code of JCC.  He had 12 years and 18 days of creditable service with no lost time.

7.  Army Regulation 635-200 sets forth the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  As then in effect, it provided in:

	a.  paragraph 16-5 (Bar to Reenlistment) that Soldiers with a Headquarters, Department of Army (HQDA)-imposed bar to reenlistment will be discharged.  A Soldier who will be unable to overcome an HQDA-imposed bar to reenlistment may request discharge prior to his or her expiration of term of service (ETS) at any time after receipt of the HQDA-imposed bar to reenlistment; and

	b.  paragraph 16-8 (Reduction in Force) that Soldiers may be separated prior their ETS when due to a reduction in force, strength limitations, or budgetary constraints require the size of the enlisted force to be reduced.

8.  Army Regulation 635-200, chapter 19, currently provides for separations under the QMP and states that Soldiers whose performance, conduct, and/or potential for advancement do not meet Army standards as determined by the approved recommendations of HQDA centralized selection boards responsible for QMP screening will be denied continued service and discharged within 90 days of their notification of the HQDA-imposed bar to reenlistment under the QMP.

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that:

	a.  both currently and as in effect in 1995, separations under reduction in force regulations require an SPD of JCC;

	b.  in 1995, separations due to a denial of reenlistment under the QMP required an SPD of KGF; there is currently no specific SPD for QMP separations; and 

	c.  the SPD/RE Code Cross Reference Table shows an SPD of JCC requires an RE code of 4 and an SPD of KGF requires either an RE code of 3 or 4.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of the Regular Army RE codes.  Basically it provides that:

	a.  An RE-3 applies to persons not qualified for continued Army service, but the disqualification is waiverable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment and those discharged under the provisions of chapters 9, 13, and 14 of Army Regulation 635-200; and

	b.  An RE-4 applies to persons with a nonwaivable disqualification, including personnel separated with an HQDA-imposed bar to reenlistment in effect.

11.  Department of Defense Directive 1332.28 (Discharge Review Procedures and Standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have been obtained under the current standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states there was a change in policy in 2007/2008 for personnel discharged due to downsizing in 1995.

2.  An RE code is driven by the SPD, which in turn is driven by the reason for separation and separation authority.  In effect, a request for a change of an RE code requires a change to the reason and authority for separation. 

3.  The applicant has not requested that his reason for his separation be changed.  Further, the record does not contain and the applicant has not provided any argument or documentation that would warrant a change to the reason for his separation.

4.  The SPD for separations due to a reduction in force was and is JCC, the SPD the applicant received.  Both at the time of his separation and currently, this type of separation carries an RE code of "4" and the policies and procedures under which the applicant was discharged do not differ materially from those currently in effect.

5.  Therefore, there is insufficient evidence to warrant a correction to the applicant's RE code.

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)                                         AR20090013927



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ABCMR Record of Proceedings (cont)                                         AR20090013927



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