IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100017360 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his reentry (RE) code as "1" instead of "4" with a corresponding separation program designator (SPD) code.

2.  The applicant states he was unaware the Army Board for Correction of Military Records (ABCMR) was available to upgrade his discharge and he deserves to resume his career.

3.  The applicant provided no additional evidence. 

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 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 (RA) on 21 February 1986.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 31R (Multichannel Transmission System Operator).  The highest rank/grade he attained during his military service was sergeant/E-5.

3.  His records reveal he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for the following:

* On 28 July 1986, failure to report at the designated time to his place of duty
* On 22 September 1989, assault on a noncommissioned officer (NCO) and disobeying a lawful order
* On 12 November 1992, driving while intoxicated

4.  On 10 March 1993, he received a general officer Letter of Reprimand for operating a motor vehicle under the influence of alcohol.  The general officer directed the Letter of Reprimand be filed in his Official Military Personnel File. 

5.  On 2 May 1995, the Department of the Army (DA) imposed a Bar to Reenlistment against him under the Qualitative Management Program (QMP) wherein it stated, in part, "If you choose to appeal, it must be submitted within 60 days" and "If your appeal is denied, you will be separated within 90 days of notification of the denial."

6.  On 25 October 1995, his QMP appeal was denied by the Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN.  In the denial memorandum, the commander stated, in part, "The Secretary of the Army has directed the early release of Soldiers with a QMP Bar to Reenlistment.  Therefore, the narrative reason for separation to be placed on the DD Form 214 is reduction in force, the RE code is 4, and the SPD is JCC."

7.  On 1 December 1995, he was honorably discharged from active duty.  Item 26 (Separation Authority) of the DD Form 214 he was issued shows "Army Regulation 635-200, paragraph 16-8"; item 26 (Separation Code) shows "JCC", and item 27 (Reentry Code) shows "4."

8.  Army Regulation 635-200 (Enlisted Separations), paragraph 16-8, in effect at the time, states, in pertinent part, that Soldiers may be separated prior to expiration of term of service.  When authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army will authorize voluntary or involuntary separation for the convenience of the Government, of RA NCOs and U.S. Army Reserve NCOs serving in an Active Guard Reserve status, under the QMP.  The QMP is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified Soldiers, (3) deny continued service to nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service.  

9.  Army Regulation 635-200 states 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of the Regular Army 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 the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification.  

10.  Army Regulation 635-5-1 (SPD Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code "JCC" is the correct code for Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 16-8.  The SPD code "JCC" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his RE code as "1" instead of "4" with a corresponding SPD code.

2.  His record shows he received NJP on at least three occasions and a Letter of Reprimand for operating a motor vehicle under the influence of alcohol.  He also received a DA imposed Bar to Reenlistment under the QMP and his appeal of the Bar to Reenlistment was denied.  As a result, he was discharged from the Army by reason of reduction in force.

3.  The evidence of record further confirms his RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation         635-200, paragraph 16-8, with an SPD of "JCC."  The RE code associated with this type of discharge is "4."  Therefore, he received the appropriate RE code associated with his discharge.




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)                                         AR20100017360





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017360



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1