IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090019141 


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 Enlisted Record Brief (ERB) and 
DD Form 214 (Certificate of Release or Discharge from Active Duty) to show pay grade E-6 and reentry (RE) code RE-1.

2.  The applicant states the following:

     a.  There are no records indicating he was reduced in grade. 

     b.  An adverse action has been resolved.  

     c.  The error in his record is preventing him from reentering the military because there is no documentation explaining his reduction.  

     d.  He was told his RE code of 3 was assigned based on the type of administrative discharge he received and later found out the code was given based on disciplinary actions.  

     e.  The only disciplinary action pending while he was on active duty has been resolved and he has been cleared of all charges.  

     f.  Neither the Army Human Resources Command nor his former unit have records of any disciplinary actions taken against him resulting in a reduction in grade.  


3.  The applicant provides the following:  

* a copy of an Order of Expunction, dated 12 March 2009, regarding his arrest record
* an exchange of emails, dated July 2009, with his former unit
* a copy of Orders 329-309, issued by the 90th Personnel Services Battalion, on 25 November 2003, promoting him to pay grade E-6

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 he enlisted in the Regular Army for a period of 4 years on 18 February 1997 and held military occupational specialty 31B (Military Police).  

3.  His record also shows he executed a 4-year reenlistment on 17 March 2000 and a 3-year reenlistment on 30 June 2003.  He was promoted to E-5 on 5 May 2000 and E-6 on 1 December 2003.  

4.  The facts and circumstances surrounding his reduction to sergeant (SGT)/pay grade E-5 are not available for review with this case; however, it appears that he was reduced from E-6 to E-5 on 23 March 2005 while assigned to the 230th Military Police Company, 95th Military Police Battalion, Germany.

5.  In April 2005, he received a "Relief for Cause" Noncommissioned Officer Evaluation Report (NCOER) covering the period June 2004 through April 2005.  His rank is listed as SGT and his date of rank (DOR) is listed as 21 March 2005.  The NCOER shows a "No" entry in the "Integrity" portion of Army values.  It also shows a "needs much improvement" rating in the "Leadership" portion of Values/noncommissioned officer (NCO) responsibilities and the comment "NCO was relieved from squad leader position due to fraternization with junior enlisted Soldier."  He authenticated this form by placing his signature indicating his administrative data was correct.

6.  His Enlisted Record Brief, dated 15 March 2006, shows he was reduced to the rank of SGT on 23 March 2005.

7.  On 5 April 2006, he submitted a DA Form 4187 (Personnel Actions) requesting early separation from the Army under the provisions of paragraph 
5-16 of Army Regulation 635-200 (Personnel Separations) to further his education.  He indicated his rank was "SGT" and he authenticated this form by placing his signature in the appropriate block.

8.  On 5 April 2006, the separation authority approved his request and directed his characterization of service be honorable.

9.  On 2 May 2006, Headquarters, III Corps and Fort Hood, Fort Hood, TX, published Orders 122-0128 directing his discharge effective 25 May 2006.  The orders listed his rank as "SGT." 

10.  On 5 May 2006, he completed an SGLV-8286 (Servicemember's Group Life Insurance Election and Certificate) and indicated his rank/grade was that of a SGT.

11.  The record is void of documentation showing he was promoted to pay grade E-6 from the date of his reduction to the date of his discharge.

12.  The applicant was honorably discharged on 25 May 2006.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 5-16 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) to attend civilian school with a character of service as honorable.  This form also shows that he completed 9 years, 3 months, and 8 days of creditable active military service.  Additionally items 4a and 4b show the entries SGT and E5 respectively; item 12h (Effective Date of Pay Grade) shows 23 March 2005; item 26 (Separation Code) shows the entry "KCF"; and item 27 shows the entry "RE-3."

13.  He submitted a copy of an email exchange, dated July 2009, with his former unit wherein he was advised there were no records maintained in that unit for the period in question.  He also submitted a copy of an Order of Expunction, dated 12 March 2009, ordering the removal of a civilian arrest from his record.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-16 states that Soldiers may be discharged or released from active duty for the convenience of the Government, up to 90 days before the expiration of their term of service (ETS), in order to attend a specific term at college, university, vocational school, or technical school.  To qualify for early separation, eligible Soldiers must not be mission essential to their assigned organizations, as determined by commanders concerned; clearly establish that the specific school term for which they seek early separation is academically the most opportune time for them to begin or resume their education, and that delay of school enrollment until normal ETS would cause undue personal hardship; provide a statement from an appropriate school official (for example, a registrar or director of admissions) indicating acceptance for enrollment (without qualification or in a probationary status) in a full-time resident course of instruction; and show that they are able to pay, or have already paid, school entry fees.  Soldiers separated or discharged under this paragraph may be given an honorable, general, or an uncharacterized discharge.

15.  Army Regulation 601-210 (Regular and Reserve Components Enlistment Program) states prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or reason for discharge.  These codes are not to be considered derogatory in nature; they are simply codes used for identification of an enlistment processing procedure.  RE code 3 applies to individuals who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  The regulation further states prior service personnel who were released early to attend school and received a Separation Program Designator (SPD) code of MCF (voluntary release from active duty to attend school) may enlist without an RE code waiver.

16.  Army Regulation 635-5-1 (Separation Program Designator Codes) states 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.  The "KCF" SPD code (voluntary discharge to attend school) is the correct code for Soldiers separating under chapter 5-16 of Army Regulation 635-200 to attend school.  

17.  The SPD/Reentry (RE) Code Cross Reference Table, dated 8 September 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD codes and corresponding RE codes.  The SPD code of "KCF" has a corresponding RE code of "3." 

18.  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.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.  

19.  Army Regulation 600-8-104 (Military Personnel Management Information Records) prescribes the policies and mandated operating tasks for the Military Personnel Information Management/Records Program of the Military Personnel System.  The ERB is an automated record of personnel management qualifications and provides some duplication, in the form of data, of information recorded in the Soldier's Official Military Personnel File (OMPF).  The ERB is created, maintained, and updated while the Soldier is on active duty.  Upon separation from active duty, the ERB is no longer maintained or updated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the correction of his DD Form 214 and ERB to change his pay grade and RE code was carefully considered and was not supported by the evidence.

2.  With respect to his pay grade, the facts and circumstances surrounding his reduction are not available for review with this case.  However, there is sufficient documentary evidence to show he was relieved for cause from his position as a squad leader for fraternization and reduced to E-5 on 23 March 2005.  This grade is consistent with that shown on various personnel documents in his record, including his DD Form 214.  There is no evidence he was promoted beyond this grade from the time he was reduced to the time he was discharged.  Therefore, he is not entitled to correction of his DD Form 214 to show pay grade E-6.

3.  With respect to his RE code, the evidence of record shows he requested voluntary separation prior to his ETS date.  The reason for his separation was assigned based on the fact that he was discharged under the provisions of paragraph 5-16 of Army Regulation 635-200 due to his voluntary request.  The only narrative reason for separation permitted under that paragraph is "Attend School."  The appropriate SPD code associated with this discharge is "KCF" and the corresponding RE code is RE-3.  Therefore, he is not entitled to correction of his DD Form 214 to show RE-1.


4.  The ERB is an automated record of a Soldier's personnel management qualifications in the form of data.  The ERB is not maintained or updated after a Soldier's separation from active duty.  Therefore, the applicant is not entitled to correction of his ERB.  

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)                                         AR20090019141



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ABCMR Record of Proceedings (cont)                                         AR20090019141



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