BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120021762 


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 reinstatement of his rank to staff sergeant and amendment of his reentry eligibility (RE) code.

2.  The applicant states he should have been given a chance to transfer to an active U.S. Army Reserve (USAR) status and serve until he was eligible to retire. 
His official discharge paperwork should be corrected to remove any indications of infractions and his rank should be reinstated.  While he is no longer age eligible for enlistment in the USAR, he feels he should be offered some type of compensation for the loss of his ability to serve in and retire from the USAR.  His one infraction for which he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, placed him in a situation that resulted in separation under the reduction in force provisions.

3.  The applicant provides no additional 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.  The applicant enlisted in the Regular Army on 17 September 1981.

3.  The applicant was promoted to staff sergeant/E-6 on 25 October 1987.

4.  On 6 February 1990, the applicant received NJP for falsifying a leave request and being absent without leave (AWOL) for 4 days.  His punishment included reduction to sergeant/E-5.  He did not appeal the NJP.

5.  On 1 November 1991, the applicant was notified that his records had been reviewed under the Qualitative Management Program (QMP).  Based on that review he received a bar to reenlistment.

6.  The applicant's raters all marked him in the lowest of the three successful blocks on all of his enlisted evaluations from May 1987 through May 1992, except for a rating of fair for the period in which he received NJP and was reduced in rank.

7.  The applicant appealed the QMP determination with a denial of the appeal being rendered on 16 June 1992.

8.  The applicant was honorably discharged on 30 September 1992 under the provisions of Army Regulation 635-200, paragraph 16-8 (Reduction in Force), and assigned a separation program designator (SPD) code of "JCC" and an RE code of "4."  He completed 11 years and 14 days of active service.

9.  Army Regulation 635-200 (Enlisted Personnel Management System), paragraph 16-8, then in effect, provided that noncommissioned officers whose performance, conduct, and/or potential for advancement did not meet Army standards as determined by the approved recommendations of centralized selection boards responsible for QMP screening, would be denied continued service.  Soldiers separated under this paragraph would be discharged or released from active duty, as appropriate.  

10.  Army Regulation 635-5-1 (SPD Codes),  then in effect, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214 (Certificate of Release or Discharge from Active Duty).  It stated the SPD code of "JCC" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 16-8, for involuntary discharge due to a reduction in force or under the QMP.  The SPD/RE Codes Cross Reference Table established RE-4 as the proper code to assign members separated with SPD code "JCC."

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted the NJP for falsifying a leave request and being AWOL and was reduced to sergeant.  He did not appeal the NJP and provided no evidence that there was an error or injustice.  Therefore, there is no rationale for restoring his rank.

2.  The applicant was properly considered and approved for separation under the QMP.  He appealed the decision and that appeal was duly considered and denied.

3.  While the reasons for applicant's QMP selection are not specified, his record shows he had three negative factors (NJP, reduction in rank, and adequate but not exemplary evaluations) that would place him below many other Soldiers vying for retention/reenlistment at a time the Army was required to have a reduction in force.  Since he no longer had a military service obligation, he was properly discharged rather than released from active duty and transferred to the USAR.

4.  With his reason for separation as QMP, the appropriate SPD and RE codes were entered on his DD Form 214.

5.  Correction of appropriate military records to show an RE code which would allow for enlistment/reenlistment, in effect, constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.  The applicant provided no evidence that he was improperly or unjustly selected for QMP separation.

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 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)                                         AR20120021762



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ABCMR Record of Proceedings (cont)                                         AR20120021762



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