MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             21 November 2000
	DOCKET NUMBER:     AR2000039984

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas A. Paqan		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Roger W. Able		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That her reentry eligibility (RE) code RE-3C be change to RE-1 in order to allow her to reenlist.  

APPLICANT STATES:  In essence, that her record contains a “flagging action that was never lifted”.  She claims that she was found not guilty of “evidence tampering of any kind and not charged with any crime,” months before the expiration of her term of service (ETS).  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) should not contain an RE-3C code.  She further states that she tried to exhaust her remedies through command channels, but with no luck.  She felt hopeless and did not know how to resolve her problem.  She has recently heard that this Board can correct problems such as hers.  Also, her “clearance" was suspended for unknown reasons and that she was “stressed.”  Finally, she makes reference to the fact that her “co-workers and her boss had knowledge of her situation.”  In support of her application she submits a copy of her DD Form 214, a copy of her DA Form 2-1 (Personnel Qualification Record) and a copy of a promotion order to pay grade E-5.

EVIDENCE OF RECORD:  The applicant's military records show:

That prior to the enlistment under review, she had two prior periods of honorable service in the Regular Army (RA) from 11 December 1978 to 17 June 1981 and from 18 June 1981 to 21 August 1986.  

On 22 August 1986, she reenlisted in the RA for 5 years and for duty in her military occupational specialty (MOS) of 71L10 (Administrative Specialist).  Her rank was specialist, pay grade E-4.  On 23 December 1986, she was assigned to Germany for duty in her MOS.  On 10 June 1990, she was returned to the Continental United States and was assigned to Fort Myer, Virginia for duty as a clerk typist.

On 15 August 1990, a DA Form 638 (Suspension of Favorable Personnel Action (Flag)) was issued by her unit commander.  Item 2 of the form was annotated that she was pending elimination from the service.  However, no further information is available to indicate the reason for the flag.  Additionally, there is no evidence that this flag action was ever lifted or removed from her records.  

On 23 August 1990, Orders 164-46 was issued by Headquarters, US Army 
Military District of Washington, Fort Lesley J. McNair, Washington, DC, announcing the promotion of the applicant from specialist to sergeant, pay grade E-5, effective 1 September 1990.  The promotion was effective only if the applicant was in a promotable status.  There is no evidence of record that she was ever promoted to pay grade E-5.

A DA Form 2A (Personnel Qualification Record, Part 1), dated 23 April 1991, shows that the applicant was ineligible for promotion for "other reasons."   

On 21 August 1991, the applicant was separated at her ETS under the
provisions of chapter 4, Army Regulation 635-200, at the completion of her required service.  She was credited with a total of 12 years, 8 months and 
11 days active service between 1978 and 1991.  She was assigned an RE code of RE-3C. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  A soldier separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the soldier is in entry level status (less than 6 months active service) and the service is to be uncharacterized.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  

An RE code of RE-3C indicates that the applicant would need a waiver to reenlist.  Further, RE-3C indicates that the soldier had completed more than 
4 months service, but does not meet the basic pay grade eligibility requirements established in chapter 2, Army Regulation 601-280 for prior service soldiers, 
i.e. will exceed the retention control point (RCP) for the soldiers rank.  

In essence, soldiers in pay grade E-4, who, after extension or reenlistment will have more than 8 years and 29 days active service are ineligible for reenlistment, unless they are on the promotion list for pay grade E-5.  Soldiers on a standing promotion list will be considered under the RCP for the next higher grade.  In the case of pay grade E-5, the RCP in 1990 was 13 years and
29 days.  

Army Regulation 600-8-2 prescribes policies, operating tasks and steps governing the suspension of favorable personnel actions, such as promotions, approval of awards and decorations, assignment to military or civilian schooling, and similar favorable actions.  The regulation provides, in pertinent part, that a flag may be imposed for various reason, when an unfavorable action or investigation (formal or informal) is started against a soldier by military or civilian authorities.  Flags may also be imposed when nonjudicial or judicial actions under the Uniform Code of Military Justice are pending, or the sentence/punishment imposed is being served; when the soldier is absent without leave for more than 24 hours; when separation action is pending;  when a Department of the Army bar to reenlistment under the Qualitative Management Program or a local bar to reenlistment is imposed; for failure to pass the Army Physical Fitness Test; or when the soldier does not meet the Army weight standards and has been entered into an Army Weight Control Program.  When the situation for which the flag has been initiated has been favorably resolved, the flag will be lifted and removed from the soldier's records.  In some cases, flags may be transferred between commands, when warranted based upon the needs of the Service. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is unjust.  The applicant, in this case, has failed to submit evidence that would satisfy this requirement.

2.  The Board notes that the facts and circumstances concerning the issuance of the flag action in August 1990 are not in her file.  On 1 September 1990, when her promotion to pay grade E-5 was effective, she was in a non-promotable status because of the flagging action.  Further, the Board notes that the flag remained in effect as late as April 1991, and she was still ineligible for promotion. In the absence of any evidence of error or injustice as to the imposition of the flagging  action, the Board presumes regularity in government operations.  

3.  Additionally, the applicant has provided no evidence to support her allegations that her command improperly failed to remove the flag action when she was found "innocent of tampering or any other criminal charges."

4.  Even if the applicant was on a standing promotion list to pay grade E-5 in August 1991, she had insufficient service remaining before the RCP for continued service in pay grade E-5.  Therefore, the Board finds that the separation action at her ETS on 21 August 1991, by reason of completion of required service was proper.  Further, the assignment of an RE code of RE-3C was proper, and no basis for change of that code has been established.    

5.  However, the applicant still retains the right to request a waiver of her RE code for enlistment in the Army Reserve or the Army National Guard based on the needs of those Reserve components.  

6.  In view of the foregoing, there is no basis to grant the applicant’s request.  

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__tap ___  ___teo __  ___rwa__  DENY APPLICATION

Carl W. S. Chun
Director, Army Boards for Correction
of Military Records

INDEX

CASE ID	AR2000039984	
SUFFIX		
RECON		
DATE BOARDED	20001121	
TYPE OF DISCHARGE	ETS	
DATE OF DISCHARGE	19910821	
DISCHARGE AUTHORITY	AR 635-200 CH4	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A133.05	
2.	A	
3.	A	
4.		
5.		
6.