ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 May 2019

	DOCKET NUMBER:  AR20170004694


APPLICANT REQUESTS:  a change to his reenlistment eligibility code (RE)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)
* Department of Veterans Affairs (VA), dated 5 March 2012
* State of West Virginia Certificate of Birth
* VA Form 21-564d (Dental Rating Sheet)
* VA Form 10-2570 (Oral Examination Findings and Treatment Recommendations)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states, in effect:

   a. As a former Soldier, he can provide evidence for a waiver that his RE code is an error or unjust and as of March 1975, his delayed entry and his enlistment/reenlistment agreement is more than an employment agreement.  It affects a change in his status from a civilian to a military member of the Armed Forces.
   
b.  Also, as a member of the U.S. Armed Forces, he has obeyed all lawful orders
and performed all assigned duties.  He has not been entitled to receive pay, allowances and other benefits, as provided by laws and regulations.  In addition, he did not understand why his birth certificate was unacceptable during the period of his mother’s terminal illness and as he was going through the separation process.   

3.  The applicant provides:
   a. A Department of Veterans Affairs (VA) Medical Center letter dated, 5 March 2012, which addresses his request to change the dates from his dental notes written by dental staff between 15 August 1978 and 17 April 1980.  
   
   b. A State of West Virginia Certificate of Birth (certified copy on file) to show his date of birth, birth parents, and county of birth.
   
   c. VA Form 21-564d (Dental Rating Sheet), dated 3 May 1978, reflects the basis for the dental rating was for out-patient treatment only.  The initial exam was followed by two subsequent examinations and/or treatments.
   
   d. A VA Form 10-2570 (Oral Examination Findings and Treatment Recommendations) dated, 8 August which concludes he has presented excellent oral hygiene.
   
4.  The complete facts and circumstances surrounding the applicant's discharge from the Army on 1 November 1977 is not available for review with this case.  However, there are sufficient remaining documents that show he entered active service on 
3 September 1975.  He was discharged from the Army on 1 November 1977, with a characterization of service of honorable.  

5. Based on the regulation (Army Regulation (AR) 635-5-1), persons separated under the provisions of AR 635-200, paragraph 6-4b, hardship, will be assigned the SPD code KDB.  

6.  Per AR 601-280, Paragraph 2-23a(5), provides that persons being discharged /separated under the provisions of AR 635-200, chapters 6, 9, 10, 11, 13 or 14 are ineligible for immediate reenlistments and requests for waivers will not be submitted.

7.  The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  Based upon the narrative reason for separation, the Board concluded that the reentry code given was aligned and appropriate for the narrative reason in accordance with regulatory guidance.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-5-1 (Separation Program Designators (SPD)), Interim Change I01, provides that persons separated under the provisions of AR 635-200, paragraph 
6-4b, hardship, will be assigned the SPD code KDB.  

3.  Army Regulation 601-280 (Army Reenlistment Program), assists commanders and reenlistment personnel in conducting the Army Reenlistment Program.  It lists eligibility criteria and options currently available and covers uniform procedures for immediate reenlistment of persons serving in the active Army.  Paragraph 2-23a(5), provides that persons being discharged/separated under the provisions of AR 635-200, chapters 6, 9, 10, 11, 13 or 14 are ineligible for immediate reenlistments and requests for waivers will not be submitted. 

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20170004694


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