IN THE CASE OF:  	  

		BOARD DATE:  16 October 2014	  

		DOCKET NUMBER:  AR20140001679 


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), ending on 12 April 1995, to show in:

* Item 26 (Separation Code) – "MCC" or "KCC"
* Item 27 (Reentry (RE) Code) – "1" or "2"

2.  The applicant states:

   a.  He believes the codes that were assigned to him were unjust due to the fact that his chain of command at the time did not fully explain to him the implications the options afforded to him would have on his career.  He knows that had the choices been explained to him better that he would have opted to continue his military career without a break in service.  He feels that he served his country without reservation and to have these codes is a blemish on an otherwise exemplary military career. 

   b.  The action taken against him while on active duty in 1995 was not handled properly.  Although he admitted to his actions, they resulted in his reduction of rank from pay grade E-4 to E-2 and being subsequently offered an early separation.  He firmly believes that had he been better informed then he would not have taken an early separation.  He is attaching a few letters of recommendations from his current and past leadership that can attest to his character and the type of Soldier he has become.

   c.  He is very proud of his military career and has striven to live up to the Army Values in every aspect of his life.  For the past 10 years he has served in the Maryland Army National Guard (MDARNG) and he is looking to continue and finish his military career as a National Guard recruiter.  Unfortunately, due to the current separation and RE codes on one of his DD Forms 214, he is currently considered "disqualified."  He is respectively and humbly requesting his separation and RE codes on his 1995 DD Form 214 be changed so that he can continue to serve his state and country the best way that he knows how.

3.  The applicant provides four letters of recommendation and his 1989, 1991, 1995, and 2008 DD Forms 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 7 November 1986.  He served in military occupational specialty (MOS) 19D (cavalry scout).  He was promoted to pay grade E-4 on 1 July 1988.  He was honorably released from active duty on 1 November 1989 and was transferred to an U.S. Army Reserve (USAR) unit.

3.  He was ordered to active duty in support of Operation Desert Shield/Storm and entered active duty on 9 January 1991.  He was honorably released from active duty in the rank/grade of specialist (SPC)/E-4 on 10 May 1991 and he was transferred to the USAR Control Group (Reinforcement).

4.  He again enlisted in the RA on 11 February 1993.  His enlistment contract is not available for review with this case.  He served in MOS 19D and appears to have been reduced to private/E-2 on 25 January 1995.  

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was honorably discharged from active duty in pay grade E-2 on 12 April 1995.  He was credited with completing 2 years, 2 months, and 2 days of net active service during the period under review.  His DD Form 214 lists in:

* Item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 16-8
* Item 26 – JCC
* Item 27 – "3"
* Item 28 (Narrative Reason for Separation) – Reduction In Force

6.  He enlisted in the MDARNG on 4 April 2003 and he served in MOS 19D.  He was promoted to pay grade E-5 on 1 June 2007.

7.  He was ordered to active duty in support of Operation Iraqi Freedom (OIF) and entered active duty on 9 June 2007.  He was honorably released from active duty on 19 March 2008 and he was transferred to an MDARNG unit.  

8.  He provided copies of four letters of recommendation, dated between 9 October and 12 November 2013, wherein the following individuals stated:

   a.  Command Sergeant Major, Multi-National Battle Group-East – he recommended the applicant for a position as an Active Guard Reserve (AGR) Recruiter, he has known the applicant for over 10 years, and has always known him to be a stellar performer.  The applicant performed meritoriously during his deployment in support of Hurricane Katrina, Operation Jumpstart, and OIF and each one exemplified his commitment to his unit and the MDARNG.  He continued to serve honorably between deployments and within Maryland as well.  The applicant would be an excellent choice for the position of AGR Recruiter and he recommended him wholeheartedly and without reservations.

   b.  Company Commander, Troop A, 1st Squadron, 158th Cavalry Regiment – the applicant was the epitome of a professional noncommissioned officer.  For the last 10 months the applicant had served superiorly as the platoon sergeant for his platoon, a job a pay grade higher than his.  The applicant had continuously demonstrated that he was an excellent leader who possessed the qualities any organization would be lucky to have.  While it would be a tremendous loss to Troop A, 1st Squadron, 158th Cavalry, it would be a big gain for the Recruiting and Retention Battalion to select the applicant as an AGR Recruiter.  

   c.  2nd Lieutenant Sxxxxxx, 158th Cavalry Regiment – the applicant would be an asset to their team.  The applicant was a focused worker, proficient and knowledgeable of job skills, and dependable.  He had the ability to multi-task and meet deadlines, even last minute ones.
   
   d.  Regional Plans Officer – he recommended the applicant remain in an active status with the MDARNG.  The applicant had overcome personal challenges from when he was on active duty to that point that he obtained the rank of staff sergeant in 10 years' time.  He had deployed to Iraq in support of Camp Buqa's security of high-profile personnel of the former Saddam Regime.  He also volunteered to assist with one of the United States' major natural disasters, Hurricane Katrina, and to work in the execution of Operation Jump Start.  The applicant's past challenges should not be taken into account, but what he had accomplished since his enlistment in the MDARNG.  

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 16 covered discharges caused by changes in service obligations.  Paragraph 16-8 stated that personnel would be notified of the separation by appropriate commanders and be provided the basis for the separation.  It provided for the separation of Soldiers prior to expiration of enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the RA or Reserve Component active duty enlisted force to be reduced in number, the Secretary of the Army, or his/her designee, could authorize voluntary or involuntary early separation.  

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the RA and USAR.  The regulation provided that prior to discharge or release from active duty individual would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 included a list of Armed Forces RE codes, including the following RA RE codes:

* RE-1 - applied to persons qualified for enlistment if all other criteria are met
* RE-2 – was discontinued in March 1995 and applied to persons qualified for enlistment, provided the reason and authority did not preclude enlistment or required a waiver; the applicant could not enlist until 93 days after separation if otherwise qualified
* RE- 3 - applied to persons not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable

11.  Army Regulation 601-201, paragraph 3-10, also provides that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE codes will be processed for a waiver at their request if otherwise qualified and a waiver is authorized.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation states the:

* SPD code of "LCC" be used for individuals involuntarily released from active duty after being denied reenlistment based on reduction in force, strength limitations, or budgetary restraints, which includes Soldiers who are denied reenlistment based on having reached the retention control point for their grade
* SPD code of "MCC" was applicable to individuals voluntarily released from active duty by reason of reduction in force under the authority of Army Regulation 635-200, paragraph 16-8
* SPD Code "KCC" was applicable to individuals voluntarily discharged from active duty by reason of early release – other
* SPD Code “JCC” was applicable to individuals involuntarily discharged from active duty by reason of reduction in force

13.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE code.  The SPD code of "JCC" had a corresponding RE code of "3."  The assignment of RE-3 was approved for the following:  local bar to reenlistment, court-martial conviction, denied waiver request, denied reenlistment, and reenlistment ineligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances of his 1995 discharge.  The available evidence shows he was reduced from pay grade E-4 to E-2 and was subsequently involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 16-8, presumably for not being eligible to reenlist and/or exceeding his retention control points, for Reduction in Force.  

2.  Nevertheless, there is no evidence in the available record and he has provided none to show his assigned separation code of "JCC" and RE code of "3" in April 1995 are in error or unjust.  Therefore, he has established no basis for changing them.  

3.  Without evidence to the contrary, his administrative separation appears to have been accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20140001679



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ABCMR Record of Proceedings (cont)                                         AR20140001679



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