IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100028746 


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 an upgrade of his reentry eligibility (RE) code from an RE code of 3 to 1 so he may reenter the military.

2.  The applicant states he was discharged from the Army because he signed a DA Form 4991-R (Declination of Continued Service Statement (DCSS)).  He was having marital problems and he did not want to leave his family at the time.  His wife refused to go to Germany with him.  He chose not to go and signed a DCSS. He saved his marriage for a few years but they were eventually divorced.  He was never in trouble and he received no nonjudicial punishment.

3.  The applicant did not provide any 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 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.  Having had prior service, the applicant's records show he enlisted in the Regular Army (RA) in the rank/grade of specialist/E-4 on 3 February 1998 and held military occupational specialty 11M (Fighting Vehicle Infantryman).  He was assigned to the 4th Infantry Division, Fort Hood, TX.

3.  On 25 June 1999, after being placed on assignment instructions to Germany, he incurred a service-remaining requirement under the provisions of chapter 4 of Army Regulation 601-280 (Army Retention Program) as a result of his reassignment instructions.  He was advised he was required to have a minimum of 36 months remaining between the date he would report and the date he would separate from the Army to comply with the operational commitment.  

4.  He was counseled by his career counselor and commander and he acknowledged that he had a specific number of days from this notification to extend or reenlist, that failure to do so would place him in a non-promotable status, prohibit his future extension or reenlistment, and make him eligible to request a voluntary separation under the provisions of paragraph 16-5 of Army Regulation 635-200 (Personnel Separation).  

5.  On 17 September 1999, he executed a DCSS.  He acknowledged he had been counseled concerning the action he must take to satisfy the length of service requirement incident to this operational commitment and regarding his refusal to extend or reenlist.  He also acknowledged he understood the effects his refusal would have on his Army career and future decisions.  

6.  On 28 September 1999, he submitted a DA Form 4187 (Personnel Action) requesting separation from the Army under the provisions of paragraph 16-5 of Army Regulation 635-200.

7.  On 12 October 1999, consistent with the immediate commander's recommendation, the separation authority approved the applicant's request and directed that he be discharged with an honorable characterization of service.  Accordingly, the applicant was discharged on 24 November 1999.

8.  His DD Form 214 shows he was honorably released from active duty in accordance with paragraph 16-5 of Army Regulation 635-200 by reason of non-retention on active duty.  He completed 1 year, 9 months, and 22 days of active service during this period.  Additionally, this form shows in item 26 (Separation Code) the entry "MGH" and in item 27 (Reenlistment Code) the entry "3."


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligation.  Paragraph 16-5(b) pertains to declination of continued service.  It states RA Soldiers serving on a second or subsequent enlistment who refuse to take action to meet the remaining military service requirements by signing DA Form 4991–R pursuant to Army Regulation 601–280, may request a voluntary separation.  The service of Soldiers separated under this paragraph will be characterized as honorable.

10.  Army Regulation 601-280 prescribes criteria for the Army retention program and sets forth policies, command responsibilities for immediate reenlistment or extension of enlistment of Soldiers currently serving in the Active Army and/or enlistment/transfer and assignment of Soldiers processing from the Active Army to the Reserve Components of the Army.  It provides, in pertinent part, that once a DCSS is processed, a Soldier is barred from enlistment.  A declination statement remains in effect unless removed by appropriate authority.  

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. 

* An RE-1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* An RE-3 applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable
* An RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  At the time of the applicant's separation action, the SPD code of "MGH" was used when a Soldier was separated by reason of non-retention under paragraph 16-5, Army Regulation 635-200.

13.  The SPD/RE Code Cross Reference Table, dated October 1999, provides instructions for determining the RE code for active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and the corresponding RE code.  It states that SPD Code "MGH" has a corresponding RE code of "3."
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his RE code of 3 should be upgraded to an RE code of 1 so that he may reenter the military.

2.  The applicant received reassignment instructions to Germany which would have required him to extend or reenlist to meet the service remaining requirements for this reassignment.  He elected not to extend or reenlist and signed a DCSS instead.  This action voided or deleted his reassignment instructions to Germany but it also made him ineligible to extend or reenlist. Subsequent to his declination to obligate himself to sufficient service to fulfill the service commitment he requested voluntary separation. 

3.  Upon separation he was assigned an RE code of 3.  This was the appropriate code for the applicant based on the guidance provided in the applicable regulation for Soldiers separating by reason of non-retention due to signing a DCSS.  Furthermore, in accordance with applicable regulations in effect at the time of his discharge the RE code entered on his DD Form 214 was consistent with the reason and authority for separation.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  He is advised if he desires to reenter the military, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are required to process an enlistment waiver for his RE code. 

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)                                         AR20100028746



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ABCMR Record of Proceedings (cont)                                         AR20100028746



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