IN THE CASE OF BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20160002936 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20160002936 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * deleting Item 25 (SEPARATION AUTHORITY) ARMY REGULATION 635-200, PARAGRAPH 5-15A (2) from his DD Form 214 * deleting Item 28 (NARRATIVE REASON FOR SEPARATION) NON-RETENTION ON ACTIVE DUTY from his DD Form 214 * adding the following to his DD Form 214 – * Item 25 (SEPARATION AUTHORITY) ARMY REGULATION 635-200, CHAPTER 4 * Item 28 (NARRATIVE REASON FOR SEPARATION) NON-RETENTION ON ACTIVE DUTY) COMPLETION OF REQUIRED ACTIVE SERVICE 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amendment of his separation authority to Army Regulation 635-200, paragraph 16-4 and upgrade of his RE code. ___________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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20160002936 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 separation authority and reentry eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states: * item 25 (Separation Authority) of his DD Form 214 currently shows Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-15a(2), which pertains to early release of Reserve Component personnel serving Active Guard Reserve (AGR) tours under Title 10, U.S. Code, section 12301(d) * item 25 should read Army Regulation 635-200, paragraph 16-4, which pertains to non-retention on active duty * he served on active duty in the Regular Army for 7 years, 7 months, and 22 days * he was not in an Army Reserve Component * his Enlisted Record Brief (ERB) shows he was assigned reenlistment eligibility/prohibition code 9G * code 9G represents grade for a Soldier who is within 16 months of expiration term of service (ETS) and cannot reenlist for the minimum term/exceeds retention control point (RCP) for current grade * item 27 (Reentry Code) is currently listed as 3, but he is unsure whether that is the correct RE code and requests correction if appropriate 3. The applicant provides: * DD Form 214 * ERB * excerpts from Army Regulation 635-200 * letter from Touchstone Research Group, Limited Liability Corporation, with military reenlistment codes instruction sheet 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 26 June 2008. On 18 February 2014, he reenlisted for a period of 2 years. 3. U.S. Army Installation Management Command, Fort Rucker, AL, Orders 208-0504, dated 27 July 2015, released him from active duty effective 17 February 2016 and reassigned him to the U.S. Army Reserve Control Group (Reinforcement). The additional instructions state he was entitled to one-half separation pay in accordance with Title 10, U.S. Code, section 1174. He was assigned separation program designator (SPD) code LGH. 4. On 8 January 2016, he was issued a DD Form 214 (presumably prior to beginning his transition leave). His DD Form 214 shows he was honorably released from active duty on 17 February 2016. He completed 7 years, 7 months, and 22 days of net active service. His DD Form 214 also shows in: * item 9 (Command to Which Transferred) – U.S. ARMY RESERVE CONTROL GROUP (REINFORCEMENT) * item 18 (Remarks), in part – MEMBER IS ENTITLED TO HALF SEPARATION PAY//ESTIMATED: $11,154.78 * item 25 – ARMY REGULATION 635-200, PARAGRAPH 5-15A(2) * item 26 (Separation Code) – LGH * item 27 – 3 * item 28 – NON-RETENTION ON ACTIVE DUTY 5. Section III (Service Data) of his ERB, dated 21 January 2016, shows his ETS date as 17 February 2016, his RE/prohibition code as 9G, and his rank as specialist. 6. U.S. Army Installation Management Command Orders 208-0504, dated 27 July 2015, were amended on three occasions by the following orders after the issuance of his DD Form 214: a. U.S. Army Installation Management Command Orders 029-0503, dated 29 January 2016, amended his future reassignment upon release from active duty from the U.S. Army Reserve Control Group (Reinforcement) to Company D, 1st Battalion, 173rd Infantry Regiment, Florala, AL b. U.S. Army Installation Management Command Orders 032-0509, dated 1 February 2016, amended his SPD code from LGH to LBK. c. U.S. Army Installation Management Command Orders 032-0504, dated 1 February 2016, amended his entitlement from one-half separation pay to full separation pay. 7. On 26 January 2016, he enlisted in the Alabama Army National Guard and was administratively assessed into the Alabama Army National Guard on 18 February 2016. 8. On 1 February 2006, he was issued a DD Form 215 (Correction to DD Form 214) correcting his DD Form 214 with a separation date of 17 February 2016 to show in: * item 9 – COMPANY D, 1ST BATTALION, 173RD INFANTRY REGIMENT, HIGHWAY 54 EAST, FLORALA, AL 36442 * item 18 – MEMBER IS ENTITLED TO FULL SEPARATION PAY//FULL SEPARATION PAY: $22,847.74 * item 26 – LBK 9. There is no evidence in his records indicating he ever signed a declination of continued service statement. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It states individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. a. Chapter 4 (Separation for Expiration of Service Obligation) states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in which their ETS fall, or if on indefinite status, they will not be retained beyond the last day of the month in which their RCP falls. b. Paragraph 5-15a (Early Release of Reserve Component Personnel Serving AGR Tours under Title 10, U.S. Code, Section 12301(d)) states AGR Soldiers serving tours under Title 10, U.S. Code, section 12301(d) may be released from active duty for the convenience of the government, prior to completion of their AGR tour. c. Paragraph 5-15a(2) states an AGR Soldier serving on an initial tour as a recruiter (that is, are on an initial AGR tour having entered the AGR program for the purpose of recruiting) may be involuntarily released from active duty when a determination has been made that they are unqualified, ineffective, or unsuitable for continued recruiting duty, and the early release is in the best interest of the government. d. Paragraph 16-4 (Non-retention on Active Duty) states Soldiers denied or ineligible for continued active duty service may be separated upon request provided they received a locally imposed bar to re-enlistment as an AGR Soldier or signed a declination of continued service as a Regular Army Soldier serving on a second or subsequent enlistment and refused to take action to meet military service remaining requirements by signing a DA Form 4991-R (Declination of Continued Service Statement). 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. 3. Army Regulation 635-5-1 (SPD Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. It states that SPD code LBK is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 4, due to completion of required active service. SPD code LBK contains a note that states except for those with a declination of continued service statement in force, this SPD code is to be used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment. SPD code LGH is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-15a(2), due to non-retention on active duty. The SPD/RE Code Cross-Reference Table stipulates that an RE code of 3 will be assigned to members separated under these provisions with an SPD code of LBK. 4. Military Personnel Message Number 15-108 (Immediate Reenlistment Prohibition (IMREPR) Code) applies to Active Component enlisted Soldiers and provides all IMREPR codes and their descriptions. It shows IMREPR code 9G to be Grade (within 16 months of ETS, not able to reenlist for 2 years due to RCP). 5. Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program and outlines procedures for immediate reenlistment or extension of enlistment for Soldiers serving in the Active Army. It stipulates a Soldier may not exceed the RCP as shown in table 3-1 by more than 1 month before expiration of contracted service (reenlistment or extension). Table 3-1 shows the RCP for the rank of specialist and specialist (promotable) to be 8 years. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to reflect amendment of the separation authority and upgrade of his RE code was carefully considered. 2. The evidence, to include an IMREPR code of 9G on his ERB, shows he was unable to reenlist in the active component for a minimum of 2 years due to reaching his RCP after 7 years, 7 months, and 22 days of active service in the rank of specialist. The RCP for a Soldier in the rank of specialist is 8 years. 3. Orders as well as a DD Form 215 reflect his SPD code were amended from LGH to LBK. 4. SPD code LBK is to be used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment, except for those with a declination of continued service statement in force. The appropriate RE code for SPD LBK is 3. 5. His ETS date and actual date of release from active duty were both 17 February 2016, showing he was separated upon completion of his enlistment. 6. His DD Form 214 shows the separation authority to be Army Regulation 635-200, paragraph 5-15a(2) and the narrative reason for separation to be non-retention on active duty. 7. Paragraph 5-15a(2), pertains to the early release of Reserve Component personnel serving AGR tours under Title 10, U.S. Code. Records show the applicant did not fit this category, as he was a Regular Army Soldier. 8. Additionally, the narrative reason for separation of non-retention on active duty does not apply to him. Army Regulation 635-200, paragraph 16-4, applies only to AGR Soldiers with a bar to reenlistment or Regular Army Soldiers who signed a declination of continued service statement. 9. Soldiers honorably released from active duty due to reaching their RCP are separated under the authority of Army Regulation 635-200, chapter 4, for the completion of required service, given an SPD code of LBK and an RE code of 3. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002936 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002936 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2