IN THE CASE OF:	  

		BOARD DATE:	 16 September 2014 

		DOCKET NUMBER:  AR20140000994 


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 entered on his DD Form 214 (Certificate of Release or Discharge from Active Duty) and "to be reinstated the time [he] lost."  He also requests a personal appearance before the Board.  

2.  He states, in effect, that a difference of opinion led to the RE code he received and that he was used to make an example.  

3.  He provides his DD Form 214.  

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 27 March 1979, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 16D (Hawk Missile Crewmember).  He was later awarded MOS 16S (Man Portable Air Defense Crewmember).  He continued his service through extensions and reenlistments.

3.  On 1 August 1988, he was promoted to staff sergeant (SSG)/E-6.  

4.  On 16 February 1990, his company commander reprimanded him for failing in the execution of his duties as a noncommissioned officer (NCO) by failing to ensure that a member of his section had the proper uniform and field gear during a field training exercise.  

5.  On 23 April 1990, he was reprimanded for failing to supervise the proper preventive maintenance checks and services of his vehicle.  His commander stated he had failed to pay even the minimum amount of attention to detail in preparing his vehicle for an inspection.  During the inspection, his vehicle had a class I oil leak at the oil pan and valve cover gaskets and the oil pressure gauge was inoperative.  

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 25 May 1990, shows his company commander recommended he be barred from reenlistment.  The company commander listed the following as factual and relevant indicators of untrainability or unsuitability:

* counseling on 1 January 1989 for fighting in the motor pool
* counseling on 23 April 1989 for falling out during physical training
* counseling on 6 November 1989 for failure to follow instruction from a superior NCO
* a military police report, dated 21 February 1990, regarding wear and appearance of the uniform
* the 16 February 1990 and 23 April 1990 reprimands

7.  The applicant was notified of the recommendation to bar him from reenlistment and indicated he would submit a statement in his own behalf.  The available records do not include his statement.

8.  His chain of command recommended approval of the bar to reenlistment.  On 11 October 1990, the proper authority approved the bar to reenlistment.  

9.  The available records show his appeal of the bar to reenlistment was denied.  The available records do not include the matters he submitted in his appeal.  
10.  On 16 April 1991 and 11 June 1991, the applicant's company commander informed the battalion commander that he had decided to continue the bar to reenlistment after considering all relevant information. 

11.  On 7 July 1991, he was honorably discharged after completing 12 years, 3 months, and 9 days of creditable active service.  His DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4
* item 26 (Separation Code) – "JBK"
* item 27 (RE Code) – "3"
* item 28 (Narrative Reason for Separation) – "EXPIRATION TERM OF SERVICE"

12.  Army Regulation 635-5-1 (Separation Program Designators (SPD)) provides the SPD code to be entered in item 26 of the DD Form 214.  Soldiers separated by reason of expiration of term of service under the provisions of Army Regulation 635-200, chapter 4, are assigned SPD code "JBK."

13.  Army Regulation 635-5 (Separation Documents), in effect at the time, as amended by Interim Change 1, dated 2 October 1989, provided instructions for determining the RE code to be entered in item 27 of the DD Form 214.  It stated that Soldiers with SPD code "JBK" would normally be assigned RE code "1," "1A," or "1C."  If, however, the Soldier had a local bar to reenlistment and had less than 18 years of service, the Soldier was to be assigned RE code "3."

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested to personally appear before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  The evidence of record shows he received a bar to reenlistment based on a history of counseling and reprimands he received after he was promoted to SSG/E-6.  There is no evidence of error or injustice in the decision to bar him from reenlistment, and the record shows his rights were fully protected during the processing of the recommendation to bar him from reenlistment.  

3.  The bar to reenlistment was not removed prior to the expiration of his term of service.  As a result, when he was discharged he was assigned RE code "3" in accordance with the governing regulation.   

4.  In the absence of evidence showing an error or injustice in this case, there is no basis for changing the RE code assigned to the applicant or for granting his request "to be reinstated the time [he] lost."

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)                                         AR20140000994





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ABCMR Record of Proceedings (cont)                                         AR20140000994



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