IN THE CASE OF:	  

		BOARD DATE:	    21 September 2011

		DOCKET NUMBER:  AR20110004572 


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 the reentry (RE) code on her DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  She states, in effect, she was given an RE code that prevented her from reenlisting because her records stated she was not a U.S. citizen.  She states she became a citizen before she entered the U.S. Army.  Because she was living overseas with her spouse, it took her 4 years to obtain a citizenship certificate proving she was a U.S. citizen.  She did not intend to end her service and would like the opportunity to continue soldiering.

3.  She provides a Certificate of Citizenship, her DD Form 214, and numerous Army records documenting her service.  

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 Official Military Personnel File is not available for review and she has no records in the interactive Personnel Electronic Records Management System (iPERMS).  This case is being considered using the documents she provides.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) for a period of 8 years and entered the Delayed Entry Program (DEP) on 7 February 1994.  On 10 March 1994, she was discharged from the DEP and enlisted in the Regular Army (RA) for a period of 4 years.  On 17 September 1997, she reenlisted for a period of 3 years, and on 16 September 2000, she was honorably discharged as a sergeant/E-5 after completing 6 years, 6 months, and 7 days of active military service.  

4.  Under item 8 (Citizenship) of the DD Form 398-2 (National Agency Questionnaire (NAQ)) completed during her enlistment processing, the box is checked next to item 8c (Alien).  Item 8c(1) (Current Citizenship) shows "Jamaica."  The box for "yes" is marked in item 8c(3) (Intend to become a U.S. citizen?), and item 8c(4) shows she indicated she was a permanent resident.

5.  A DA Form 7154-R (Agreement to Join the Ready Reserve) shows, on 10 April 2000, she agreed to serve in the USAR for a period of 3 years as a condition precedent to receiving separation pay.  A handwritten note on the form, dated 21 June 2000, shows she was not eligible to join a unit due to not being a U.S. citizen.  

6.  Her DD Form 214 shows in:

* item 6 (Reserve Obligation Termination Date) she had no Reserve obligation when she was discharged
* item 25 (Separation Authority) - Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) , chapter 4
* item 26 (Separation Code) - "JBK"
* item 27 (RE Code) - "4"

7.  The Certificate of Citizenship she provides shows she became a U.S. citizen on 8 July 1992.  The certificate is dated 12 August 2003.

8.  Army Regulation 635-200, chapter 4, provides that Soldiers will be separated upon expiration of enlistment or fulfillment of service obligation.

9.  Army Regulation 601-280 (Army Retention Program) outlines procedures for immediate reenlistment or extension of enlistment.  The version in effect at the time of her discharge stated Soldiers with less than 10 years of active Federal service would be reenlisted for 2, 3, 4, 5, or 6 years of service.  It also stated aliens who would have in excess of 8 years of Federal military service at the expiration of the period for which they were seeking to reenlist, were disqualified from reenlistment.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Table C-1 of the version in effect at the time shows SPD code "JBK" was applicable to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, chapter 4, and that note 7 was applicable.  Note 7 stated the code "JBK" was to be used for an RA Soldier ineligible for, barred from, or otherwise denied reenlistment who is separated on completion of enlistment.

11.  The SPD/Reentry (RE) Code Cross-Reference Table 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 table in effect at the time shows the SPD code of "JBK" has a corresponding RE code of "3."  Instructions prefacing the table stated to enter RE code "4" when Soldiers are:  

	a.  discharged for any reason with 18 or more years service, 

	b.  discharged under the Qualitative Management Program, or 

	c.  aliens with 8 or more years of service [reference Army Regulation (Regular Army and Army Reserve Enlistment Program) 601-210, paragraph 3-4].

12.  Army Regulation 601-210 (Personnel Procurement - Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve.  

   a.  The version in effect at the time stated applicants and enlistees would be advised that if they were not a U.S. Citizen, U.S. National, or a citizen of the Federal States of Micronesia, Palau or the Republic of the Marshall Islands, they must obtain U.S. citizenship in order to remain in the U.S. Army for more than (RA) 8 years or (USAR) [for] completion of their military service obligation (MSO).  
   
   b.  Paragraph 3-4 of the version in effect at the time stated noncitizens may not enlist for a period which, when added to previous Federal military service, would exceed 8 years total Federal military service.
   
   c.  The regulation states individuals with an RE code of "3" are  not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  An RE code of "4" is assigned to Soldiers separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  At the time of her initial enlistment, the applicant provided citizenship information on her NAQ indicating she was an alien with permanent resident status who intended to become a U.S. citizen.  

2.  Prior to her discharge, she signed an agreement to serve in the USAR for 3 years in order to be eligible for separation pay.  She was ineligible to do so because at the time her record showed she was an alien and, at the end of the proposed period of service, she would have exceeded the 8-year service limit for aliens. 

3.  Because of the citizenship status shown in her record at the time of her discharge, she was properly assigned RE code "4."  It was her obligation to update her records with her actual status, but she did not do so during her more than 6 years of service.  

4.  She has provided a Certificate of Citizenship showing she became a U.S. citizen on 8 July 1992, prior to enlisting.  The document is dated 12 August 2003 and, clearly, was not available when she enlisted or at the time of her discharge.  It appears that circumstances beyond her control delayed issuance of the certificate.  

5.  She was properly discharged based on the information available at the time.  However, considering the facts and circumstances in this case, it would be appropriate to correct her DD Form 214 to show RE code "3," the RE code properly associated with Soldiers discharged with SPD code "JBK."  She may then contact a recruiter to pursue a waiver to reenter military service.






BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry "4" from item 27 of her DD Form 214 and adding the entry "3."



      __________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)                                         AR20110004572





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ABCMR Record of Proceedings (cont)                                         AR20110004572



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