IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100026085 


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 a reentry (RE) code of "1" vice "4" and a corresponding separation program designator (SPD) code.  He also requests that the separation authority be changed.

2.  The applicant states he does not have post exchange/commissary privileges or medical benefits.  He spoke with a veterans service officer and he was advised that maybe he is entitled to benefits.

3.  The applicant provides:

* DD Form 214
* Discharge orders
* DA Form 2166-7 (Noncommissioned Officer (NCO)) Evaluation Report
* DA Form 2-1 (Personnel Qualification Record)

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 (RA) on 22 June 1976 and he held military occupational specialty 11B (Infantryman).

3.  His records reveal he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 3 August 1990 for driving while drunk at a high rate of speed and in a reckless manner.

4.  On 12 September 1990, he received a General Officer Letter of Reprimand (LOR) for operating a motor vehicle while drunk and in an erratic manner.  The general officer directed that the LOR be filed in his Official Military Personnel File. 

5.  On 1 November 1991, 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 2 March 1992, he was notified by the Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, that his QMP appeal was denied by a DA Standby Advisory Board.  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 strength, the RE code is 4, and the SPD is JCC."

7.  On 26 May 1992, he was honorably discharged from active duty.  He completed 15 years, 11 months, and 5 days of active service.

8.  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."

9.  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 (USAR) 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.  

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, USAR, and Army National Guard.  Table 3-1 includes a list of RA and 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.  

11.  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 of "JCC" is the correct code for Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 16-8.  The SPD code of "JCC" has a corresponding RE code of "4."

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant received an NJP and an LOR for operating a motor vehicle in an erratic manner while drunk.  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 due to reduction in strength.

2.  His RE code was assigned based on the fact that he was discharged under the separation authority of Army Regulation 635-200, paragraph 16-8, with an SPD code of "JCC."  The RE code associated with this type of discharge is "4."  Therefore, he was assigned the appropriate RE code, SPD code, and separation authority associated with his discharge.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the individual eligible for veterans or other benefits.  Every case is individually reviewed based on its merits when an applicant requests a change in his or her 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)                                         AR20100026085



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ABCMR Record of Proceedings (cont)                                         AR20100026085



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