IN THE CASE OF:	  

		BOARD DATE:	  10 July 2012 

		DOCKET NUMBER:  AR20120001866 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing his reentry code 4 (RE-4).

2.  The applicant states, in effect, that he was not given a second urinalysis to prove his innocence.  He contends that he never intended to use illegal substances which may have been slipped into a beverage at an establishment off the installation.  He wants to serve again in the military as a health care provider.  He also states that he has been an upstanding citizen in the community and in his church.  He went back to school to obtain a degree in health care management and marketing.  His son is attending the Naval Academy.  The applicant is now ready to proudly serve his country again.

3.  The applicant provides no additional documentation.

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.  On 4 February 1986, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 91B (Medical Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows the following:

	a.  He completed a 2-year tour of duty in the Federal Republic of Germany from July 1986 to June 1988;

	b.  He served a 6-month temporary duty tour in Saudi Arabia in 1990 and 1991; and

	c.  His record of advancements, promotions, and reductions shows:

* Private, pay grade E-2: 18 August 1986
* Private, pay grade E-1: 14 November 1986
* Private, pay grade E-2: no date recorded
* Private first class, pay grade E-3: 1 November 1987
* Specialist Four, pay grade E-4: 1 September 1988
* Sergeant, pay grade E-5: 1 August 1992
* Specialist, pay grade E-4: no date recorded
* Private, pay grade E-1: 18 June 1993

4.  On 18 June 1993, the applicant accepted nonjudicial punishment for the wrongful use of cocaine on or between 4 April and 4 May 1993.  In addition to being reduced to pay grade E-1, he had to forfeit $300.00 pay per month for 2 months, perform 45 days of extra duty, and be under restriction for 40 days.

5.  On 2 July 1993, the applicant submitted a DA Form 4187 (Personnel Action) wherein he requested a separation date of 10 August 1993.  This action was necessary because his reduction to private E-1 made him no longer retainable in the service due to his exceeding the retention control point.  In an accompanying memorandum, the applicant further stated that he regretted his recent poor decision-making that affected his military career and caused his early release due to his reduction in rank.  On 6 July 1993, the applicant's commander recommended approval of the request.

6.  On 17 August 1993, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He had completed 7 years, 6 months, and 14 days of creditable active duty service.

7.  The applicant's DD Form 214 reports his characterization of service as honorable.  The authority for his separation was Army Regulation 635-200, paragraph 16-8.  His separation program designator (SPD) is LCC, and his RE code is 4.

8.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

9.  Army Regulation 601-280 (Army Retention Program), as then in effect, provided that Soldiers in the rank of corporal/specialist and below who were beyond their RCP were ineligible to reenlist or extend their enlistment and must separate not later than 29 days after reaching their RCP regardless of their current enlistment agreement.  The RCP for Soldiers in the ranks of private, pay grade E-1 through private first class, pay grade E-3 was 3 years.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of LCC was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 16-8, for reduction in force.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-2B as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be changed to show an RE code that would permit him to reenter the military service.  He argues that he is now ready to honorably serve his country again.

2.  The evidence of record clearly shows that that the applicant was reduced to the rank of private, pay grade E-1.  At the time he had more than 7 years of active duty service which exceeded the RCP of 3 years for his pay grade.  Accordingly, he was no longer retainable and had to be released from active duty.

3.  The RE-4, establishing his ineligibility for enlistment/reenlistment, was incorrectly entered on his separation document in accordance with governing regulations.  The SPD/RE Code Cross Reference Table, in effect at the time, established RE-2B as the proper RE code to assign to Soldiers for this reason.

4.  In view of the foregoing, the applicant's DD Form 214 should be changed to reflect the correct RE code of 2B.

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 
showing on his DD Form 214 his RE code as 2B.




      _______ _   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)                                         AR20120001866





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ABCMR Record of Proceedings (cont)                                         AR20120001866



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