IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160015516 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2019 DOCKET NUMBER: AR20160015516 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by: * revising the narrative reason for separation * amending his reentry (RE) code * changing his character of service to honorable * expunge the declination statement he signed on 8 July 2015 2. The applicant states he believes his DD Form 214 wrongly lists his RE code as "3." a. On 29 August 2016, the counselor who generated his DD Form 214 told him the reason he received this code because he had signed a declination statement on 8 July 2015. No one told him that signing the declination statement would have a negative impact on his DD Form 214 and RE code. b. Two days later, he went to the Reserve Component (RC) career counselor and signed an enlistment contract with the California Army National Guard (CAARNG). He was supposed to receive a $20,000 signing bonus, but they said he did not qualify because of his RE-3 code. He asserts this RE code is wrong; he signed the declination statement with less than a year of retainability and would not have been transferred before his contract expired. c. He has sent the Board this petition because he wants to change his RE code to something better; something that more accurately reflects his 7 1/2 years of meritorious service in the Army. He also requests the Board to expunge or redact his declination statement. With this correction, he would become eligible for the bonus, to which he feels he is entitled. When he signed his DD Form 214, he did not realize the impact of an RE-3 code; all they told him to look for was that he got an honorable discharge. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * DD Form 214, ending 19 April 2016 * DA Form 4991-R (Declination of Continued Service Statement), dated 8 July 2015 * DA Form 5691-R (Request for RC Assignment Orders), dated 10 July 2015 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 10 July 2015, with associated documents 2. Evidence from the applicant’s service record, and Department of the Army (DA) and Department of Defense (DOD) records and systems: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 23 September 2008 * 108th Air Defense Artillery Brigade Orders Number 209-005, dated 27 July 2012 * Two Enlisted Record Brief (ERB), respectively dated in July 2015 and February 2016 * U.S. Army Garrison – Hawaii Orders Number 053-0025, dated 22 February 2016, with amendment, dated 11 March 2016 REFERENCES: 1. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 4 (Separation for Expiration of Service Obligation) prescribes procedures for separating Soldiers who have fulfilled their enlistment/service obligations. b. Paragraph 16-4 (Non-Retention on Active Duty) states Regular Army Soldiers serving on a second or subsequent enlistment who refuse to take action to meet military service remaining requirements by signing a DA Form 4991-R, pursuant to AR 601-280, may request voluntary separation. 2. AR 601-210 (Regular Army and RC Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for the Active Army and RC enlistment program. Table 3-1 (U.S. Army RE Eligibility Codes) included a list of the RE codes: * RE-1 applied to Soldiers completing their term of active service who were considered qualified to reenter the U.S. Army; they were qualified for enlistment if all other criteria are met * RE-3 applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable; they were ineligible unless a waiver is granted 3. AR 601-280 (Army Retention Program), in effect at the time, prescribed policies and procedures for the Army Retention Program. a. Paragraph 3-19c(12) (Moral and Administrative Disqualification) stated Soldiers who had a DA Form 4991-R in effect were ineligible for immediate reenlistment. c. Paragraph 4-6 (Service Remaining Requirements (SRR)). An SRR was a Headquarters, DA (HQDA) prerequisite for a Soldier to have a specified amount of remaining contractual service in order for an authorized action to be taken (i.e. service school attendance, overseas assignments, or promotion to the grade of SSG). Within 30 days of notification of an SRR, Soldiers was to be counseled and could take one of the following actions: * elect a discharge for the purpose of immediate reenlistment * extend current enlistment * elect a combination of reenlistment and extension if in the best interests of the Soldier and the Army d. Paragraph 4-11 (Use of the Declination of Continued Service Statement) stated, other than for those in their initial term, Soldiers who had 4 or more years of service for pay purposes at expiration term of service (ETS) had to take action to meet SRR. e. Paragraph 11-21 (DA Form 4991-R). The DA Form 4991-R was used by commanders, Personnel Service Companies, and retention personnel for those Soldiers who refused to take action to obtain sufficient time to comply with HQDA-directed SRR. (1) The Soldier's commander or first sergeant were to counsel the Soldier ensuring he/she fully understood that refusal to comply with orders would result in the execution of the declination of continued service statement (DA Form 4991-R). The Soldiers was to be further advised they were prohibited from reenlistment or extension of their enlistment and could not apply for reentry into the Regular Army for a period of at least 93 days. (2) For Soldiers in the grade of staff sergeant or below, the commander was to additionally annotate the Soldier's reenlistment data form to show a code of "9Q" (Declination of Continued Service Statement; refusal to take action to meet length of service requirement). 3 AR 635-5-1 (SPD) states "MBK" is for Soldiers voluntarily released from active duty at the completion of required active service. The referenced authority is chapter 4, AR 635-200. This SPD also refers to note "6," which essentially states the SPD is used for Regular Army Soldiers with a declination of continued service statement in force who are released from active duty and transferred to the RC to complete military service obligation. 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of "MBK" has a corresponding RE code of either "1" or "3." 5. AR 600-8-104 (Army Military Human Resources Records Management) prescribes policies and procedures for the maintenance of a Soldier's official military personnel file (OMPF). a. Once properly filed in the OMPF, a document will not be removed unless so directed by the ABCMR, or other authorized agencies. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record (OMPF) and/or Interactive Personnel Electronic Records Management System (iPERMS)), lists the documents that are required to be filed in the OMPF; it shows the DA Form 4991-R is to be placed in the Service folder. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). DISCUSSION: 1. The applicant enlisted in the Regular Army on 1 October 2008. He immediately reenlisted for a 4-year term on 20 April 2012, making his expiration term of service (ETS) 19 April 2016. 2. He was promoted to sergeant, effective 1 August 2012. 3. At some point prior to 8 July 2015, he received HQDA assignment instruction, which showed a reporting date of February 2016; this assignment required a minimum months remaining to ETS of 12 months. On 8 July 2015, the applicant's career counselor completed a DA Form 4991-R with the applicant. a. The applicant acknowledged: * he had no later than 45 days to extend, reenlist, or execute the DA Form 4991-R * completing the DA Form 4991-R would make him ineligible for reenlistment or extension of enlistment * he was prohibited from reentry into the Active Army for at least 93 days if separated at normal ETS; he was eligible to join the RC b. He further affirmed he was counseled by a career counselor concerning the actions required of him to satisfy a length-of-service requirement incident to an operational commitment, and regarding his refusal to extend his enlistment or reenlist to comply with the commitment. He indicated he understood the effects of his refusal on his Army career. 4. On 10 July 2015, he executed a DD Form 4, enlisting into the CAARNG for a term of 6 years. His enlistment was to become effective on his release from the Regular Army. 5. The applicant's ERB, dated July 2015, shows a reenlistment eligibility code of "9Q." 6. He was honorably released from active duty on 19 April 2016 (his ETS). His DD Form 214 shows the following: * completed 7 years, 6 months, and 19 days of net active service * was being transferred to a CAARNG unit * separation authority was chapter 4, AR 635-200; the narrative reason for separation was "Completion of Required Active Service" * SPD code listed as "MBK" * RE code was "3" 7. The applicant received HQDA assignment instructions that required him to either reenlist or extend his enlistment. After counseling, he elected to separate at his ETS rather than reenlist or extend; he also chose to enlist into the CAARNG. * Soldiers who do not extend or reenlist in response to HQDA assignment instructions are barred from reenlistment without a waiver (RE code "3") * The applicant was honorably released from active duty based on reaching his ETS (completion of required active service); by regulation, the correct separation code was "MBK" and the appropriate RE code was "3" * The applicant does not offer evidence to show his DA Form 4991-R was filed in error or the result of an injustice; because the regulation was followed, there is no basis to expunge the DA Form 4991-R from the applicant's OMPF BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015516 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2