IN THE CASE OF:	 

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140013917 


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 the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 11 December 2009:

* his reentry eligibility (RE) code be changed from "3" to "1"   
* his grade be changed from E-3 to E-4

2.  The applicant states:

	a.  Due to his outstanding professional career on the civilian side he would like his RE code changed from "3" to "1" so he can join the Air National Guard without a waiver.  He would like his highest grade to be shown as E-4.  He states there is nothing in his records showing that he was reduced from E-4.

	b.  In 2007, he deployed to Iraq with the 101st Airborne Division.  He performed night/day patrols and operated with the Iraqi Army to secure their government.  When the unit returned from Iraq a lot of them felt the need to still fight and still had a sense of god-like power.  In 2008, a year before he was due to get out, he was placed on stop-loss.  He started to rebel and shut himself off to the chain of command.  He started to notice his actions and went to speak with a doctor and was diagnosed with post-traumatic stress disorder (PTSD).

	c.  In August 2008, he was arrested and booked on charges of armed robbery.  He provides a lengthy description of the circumstances surrounding this arrest.  He was ultimately found to have no involvement with the robbery.  His charges were dropped and his arrest record was expunged.  

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138, dated 31 July 2014
* DD Form 214
* self-authored statement
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 
1 April 2008
* an undated letter from the VA
* an undated, unsigned letter addressed to Sir or Madam
* his résumé
* a certificate of completion for the satisfactory completion of the American Legion Service Officers' Basic Training Course
* a letter, dated 4 February 2014, from the American Legion
* a certificate of appointment as an accredited representative for the American Legion
* a certificate of appreciation

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 12 July 2006, he enlisted in the Regular Army (RA) in pay grade E-3.  

3.  He served in Iraq from 15 September 2007 to 9 November 2008.

4.  The SF 600, dated 1 April 2008, shows the reason for his appointment at the Carentan Clinic was a back injury.  PTSD is listed under "Autocites."  The applicant indicated he just wanted something for his back pain.  It was noted that anger management behavior was discussed with the applicant.

5.  His Enlisted Record Brief (ERB) shows he was promoted to specialist (SPC) on 1 September 2008 and reduced to private first class (PFC) on 28 May 2009.  The circumstances of his reduction are not shown in his official military personnel file (OMPF).

6.  He was confined by civilian authorities from 1 August to 12 September 2009.  The circumstances surrounding this confinement are not shown in his OMPF.

7.  On 11 December 2009, he was released from active duty in the rank of PFC.  His date of rank is shown as 28 May 2009.  He completed 3 years, 3 months, and 18 days of net active service that was characterized as honorable.  He had 42 days of time lost.  He was assigned a separation code of "MBK" and an RE code of "3."

8.  Certificates and letters provided by the applicant show he completed the American Legion Service Officers' Basic Training Course, was approved by the VA General Counsel for accreditation, and was ultimately appointed as an accredited representative of the American Legion in the presentation of claims before the VA on 14 January 2014.

9.  The U.S. Army Human Resources Command (HRC), Army Soldier Records Branch’s list of documents required for filing in iPERMS (integrated Personnel Electronic Records Management System) states that for Soldiers who are at the rank of SPC or corporal and below (prior to punishment) the original record of non-judicial punishment (NJP) will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another general court-martial convening authority, whichever occurs first. 

10.  Army regulations then in effect provided that prior to discharge or release from active duty individuals would be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provided eligibility criteria, policies, and procedures for enlistment and processing into the RA. 

	a.  An RE-1 applied to persons completing an initial term of active service who were fully qualified for enlistment when last separated.  

	b.  An RE-3 applied persons who were not qualified for continued
Army service, but the disqualification was waivable.  These individuals were ineligible for enlistment unless a waiver was granted.

	c.  Paragraph 4–14 (Absent without leave or lost time) states any applicant who, during their last period of Service, was AWOL or had lost time for more than 30 consecutive days, regardless of the type of separation or RE code, is considered to be dropped from rolls, waiver not authorized.

11.  Army Regulation 601-280 (Total Army Retention Program) prescribes the criteria for the Total Army Retention Program.  For those Soldiers serving in the Active Army, it outlines procedures for immediate reenlistment or extension of enlistment.  

	a.  Immediate reenlistment in the Active Army is authorized for periods of 
2, 3, 4, 5, or 6 years.

	b.  A Soldier cannot exceed the retention control point (RCP) by more than 
29 days before the expiration of contracted service.

	c.  Table 3-1 (Retention control points) shows the RCP for a PFC is 3 years.  

	d.  Except for Soldiers serving indefinite reenlistments, Soldiers who reach their RCP during their current enlistment agreement, either through length of service, reduction in rank, or by removal from a promotion list, whether voluntary or involuntary, may serve until contracted expiration term of service, unless they are separated earlier under applicable administrative, physical disability, or Uniform Code of Military Justice separation provisions.

	e.  There may be cases in which this regulation does not prescribe a waiver process for a certain disqualification, and a waiver is not prohibited by this regulation.  If so, Soldiers who are otherwise qualified for reenlistment are recommended by the unit commander, through command channels, to Commander, U.S. Army Human Resources Command.

	f.  Paragraph 3-9 (Moral and administrative disqualifications) states that  waivers for AWOL or lost time exceeding 30 days will be submitted to the Commander, HRC.  This authority may not be further delegated.

12.  Army Regulations 635-5 (Separation Documents), then in effect, stated the active duty grade or rank and pay grade at the time of separation, taken from the ERB, were to be entered on the DD Form 214.

13.  The Separation Program Designator (SPD) /RE Code Cross-Reference Table, dated 15 June 2006, shows that the appropriate RE code for the separation code "MBK" is "1" or "3."  The RE code 3 is to be entered when a Soldier's record indicates he has time lost due to AWOL or confinement.

DISCUSSION AND CONCLUSIONS:

1.  He contends his highest grade was E-4 and he was never reduced to E-3.  His ERB shows he was promoted to SPC on 1 September 2008.  However, his date of promotion to PFC is shown as 28 May 2009, thereby indicating he was reduced to PFC effective that date.  There is no evidence surrounding the circumstances of this reduction.  Because he was in pay grade E-4, there would be no record of any instances of NJP filed in his OMPF.  Therefore, in the absence of evidence to the contrary, his grade as shown on his DD Form 214 is determined to be correct.

2.  At the time of his release from active duty he completed 3 years, 3 months, and 18 days of active service.  The RCP for PFC at the time was 3 years.  Therefore, he required a waiver in order to immediately reenlist and the assignment of an RE code of "3" is correct.

3.  He had 42 days of lost time.  He was not eligible for immediate reenlistment without a waiver from HRC.  Therefore, he required a waiver in order to immediately reenlist and the assignment of an RE code of "3" is correct.

4.  According to the SPD/RE Code Cross-Reference Table, the assignment of RE code "3" for the applicant's separation code of "MBK" is correct.

5.  Therefore, in view of the above there is no basis on which to change his properly-assigned RE code.

6.  His post-service accomplishments are noted.  However, they are an insufficient basis upon which to change a properly-assigned RE code.

7.  The applicant is advised that although his RE-3 code was properly assigned, this does not mean that he is totally disqualified from returning to military service. The disqualification upon which the RE-3 code was based may be waived for enlistment purposes.

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)                                         AR20140013917



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ABCMR Record of Proceedings (cont)                                         AR20140013917



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