IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023397 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by:

* showing in block 11 (Primary Specialty) that he served 3 years and 4 months as an ammunition specialist instead of 3 years and 2 months
* showing in block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) that he was awarded the Combat Action Badge (CAB)
* showing in block 26 (Separation Code) and block 27 (Reentry Code) a different separation code and reentry eligibility (RE) code

2.  The applicant states block 11 of his DD Form 214 should reflect that he served 3 years and 4 months as an ammunition specialist, that block 13 should reflect his award of the CAB that his platoon received in Afghanistan, and that blocks 26 and 27 should reflect the correct separation and RE codes.  He goes on to state he served his time in the Army and received a regular discharge; however, he now requires a waiver to enlist because of his RE code.

3.  The applicant provides a copy of his DD Form 214.

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 enlisted in the Regular Army on 1 April 2003 for a period of 3 years, training as an ammunition specialist, and assignment to Europe.  He completed 8 weeks of basic training at Fort Knox, Kentucky, and was transferred to Redstone Arsenal, Alabama, to undergo 11 weeks of advanced individual training (AIT) as an ammunition specialist in military occupational specialty (MOS) 89B [formerly 55B].

3.  He completed his training and was transferred to Germany.  He deployed to Afghanistan from 6 April 2005 to 6 April 2006 and he was advanced to pay grade E-3 on 1 November 2005.

4.  On 31 July 2006, he was honorably released from active duty (REFRAD) due to completion of required service.  He completed 3 years and 4 months of active service and was issued a separation code of "MBK" (Expiration of Term of Service) and an RE code of "3."

5.  His DD Form 214 shows he was awarded the National Defense Service Medal, Afghanistan Campaign Medal, Global War on Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon.  There is no evidence in the available records to show he was awarded the CAB.

6.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the CAB are branch and MOS immaterial.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the CAB.  However, it is not intended to award the CAB to all Soldiers who serve in a combat zone or imminent danger area.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  The Soldier must [not] be assigned or attached to a unit that would qualify the Soldier for the Combat Infantryman Badge or the Combat Medical Badge.  Award of the CAB is authorized from 18 September 2001 to a date to be determined.  The authority to wear the badge must be announced in published orders.

7.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides that in block 11, the titles of all MOS's served in for at least 1 year will be entered in that block along with the time served in the MOS.  For time determinations, do not count basic training and AIT.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides guidance for the issuance of RE codes upon separation from active duty.  It states these codes are not to be considered derogatory in nature, they are simply codes that are used for identification of an enlistment processing procedure.

9.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  A bar to reenlistment is one of those instances in which a person would be issued a code of RE-3 at the time of separation.

10.  Army Regulation 601-280 (Army Retention Program) serves as the authority for reenlistments and establishes reenlistment control points.  It provides that Soldiers in pay grade E-3 at the end of their enlistments are not authorized to reenlist.  Soldiers who are reduced to pay grade E-3 are not allowed to extend their enlistments.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that block 11 of his DD Form 214 should reflect that he served his entire period of enlistment (3 years and 4 months) in his MOS has been noted and found to lack merit.  The applicable regulation provides that time served in basic and AIT will not be used in determining time served in an MOS.  Given that his basic training was 8 weeks in duration and his AIT was 11 weeks in duration, he has received a generous computation of time served in his MOS.  Accordingly, there is no basis to grant him further credit.

2.  The applicant's contention that he was awarded the CAB has also been noted and found to lack merit.  While the sincerity of his claim is not in doubt, his records do not contain and he has not provided orders awarding him the CAB.  In the absence of such orders, there appears to be no basis to add the CAB to his DD Form 214.

3.  The applicant's contention that he was issued the wrong separation and RE codes has also been noted and is found to lack merit.  He was properly separated due to the expiration of his term of service and he was awarded the RE code of "3" because he was serving in pay grade E-3 at the time of his REFRAD in accordance with the applicable regulation in effect at the time.  Accordingly, there appears to be no basis to grant that portion of his request.

4.  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 failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ____________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)                                         AR20100023397



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ABCMR Record of Proceedings (cont)                                         AR20100023397



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