IN THE CASE OF: BOARD DATE: 13 April 2020 DOCKET NUMBER: AR20190005946 APPLICANT REQUESTS: The applicant requests: * removal of two flags (Suspension of Favorable Personnel Action) * in effect, correction of his DD Form 214 (Certificate of Release or Discharge) in item 27 (Reentry (RE) Code) to show he received an RE code of "1" instead of "3" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 he was honorably released from active duty on 26 November 2015 and he would like to continue his military career. Prior to his release from active duty, he served in the position of 88M (Motor Transport Operator). This duty inspired him to continue serving and operating trucks as a professional truck driver after his release from active duty. He proudly served this great country, over the past three years, by driving around this nation multiple times, delivering various goods and products for the United States of America. a. Aside from his service as a professional truck driver, he is taking the measures to turn his life around, so that he may serve his country tirelessly and whole-heartedly. He attended school in an attempt to become a more knowledgeable 88M as a diesel mechanic, and he retires his drinking and smoking habits to ensure he is physical and mentally fit to continue defending his country in the years to come. b. He feels he fulfilled his goals as a civilian and he is now eager to return to his career in the Army, this time for the long haul. However, before he can rejoin the Army, he requires a records correction to remove to suspensions of favorable personnel actions (FLAG). c. His previous behavior resulted in his receipt of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). He feels that since his receipt of NJP, he has taken the time to reflect, learn, and grow. He offers that it is not uncommon for Soldiers to receive reprimands for their mistakes, but asserts that he has full accountability for his mistakes and, if given the opportunity, he will prove he can perform above expectations and he will strive to become a leader and motivate future Soldiers to exceed the expectations. He is willing to do whatever it takes to have the flags removed from his record, so he may continue to serve his country. 3. The applicant enlisted in the Regular Army on 17 July 2012. 4. His enlisted record brief (ERB), which contains the following entries and information: a. His ERB contains a Reenlistment Eligibility/Prohibition of code of "9V," which means the applicant was pending separation, a flag code of B or W was imposed, which only HRC could impose or remove, and the applicant was not eligible for reenlistment or extension. b. His ERB contains two flag codes UA and BA (nontransferable flags); both initiated on 3 November 2015. The first letter in the flag code denotes the reason the flag was imposed, and the second letter stands for the type of report issued. The first code of "U" denotes a flag for drug abuse adverse action and the first code of "B" denotes involuntary separation or discharge (field initiated). Additionally, the second code of "A" denotes an initial report. 5. The applicant's record does not contain the flagging actions or a separation packet. 6. The applicant was honorably release from active duty on 26 November 2015. His DD Form 214 contains the following entries: a. 18 (Remarks), he completed his first full term of service; b. 24 (Character of Service), Honorable; c. 25 (Separation Authority), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 4; d. 26 (Separation Code), he was assigned a Separation Program Designator (SPD) code of LBK; e. 27 (Reentry Code), he was assigned an RE code of 3; f. 28 (Narrative Reason for Separation), Completion of Required Active Service; and g. 29 (Dates of Time Lost During this Period), None. 7. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)), chapter 3 (Prohibitions and Retention of Flag Personnel), paragraph 3-1 (Actions prohibited by a flag), states a properly imposed flag prohibits reenlistment. 8. Army Regulation 635-5-1 (Separation Program Designator Codes) states the SPD code LBK is the appropriate code to assign to Soldiers involuntarily released from active duty upon completion of required active service. This code is to be used for Regular Army (RA) Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment under the provisions of Army Regulation 635-200, chapter 4, due to completion of enlistment and transferred to the Reserve components to complete their military service obligation. The SPD/RE Code Cross Reference Table indicates that RE code 3 is the proper code to assign members separated with SPD code LBK. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s flags or the RE code 3 on his DD Form 214. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4 of this regulation provides a Soldier enlisted or ordered to active duty will be discharged or release from active duty on the date he/she completes the period for which enlisted or ordered to active duty. It also states 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. 2. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) prescribes Army policy for the suspension of favorable personnel actions (Flag) function of the military personnel system. It is linked to Army Regulation 600–8 (Military Personnel Management) and provides principles of support, standards of service, and policies regarding the initiation, transfer, removal, and management of Flags. a. Chapter 2 (Policy and Management of Flags), paragraph 2-1 (General Policy) states, the purpose of a flag is to prevent and/or preclude the exception of favorable actions to a Soldier who may be in an unfavorable status in his or her current unit or location until cleared of ongoing actions. Flags are classified into two categories depending on the specific action or investigation: Nontransferrable – the flagged Soldier may not be transferred to another unit; and Transferrable – the flagged Solder may be transferred to another unit. b. Chapter 2, paragraph 2-2 (Circumstance requiring a nontransferrable flag) states, the specific actions listed below require initiation of a nontransferrable flag include: (1) "Involuntary separation or discharge" (field initiated (Flag code B). Soldiers pending involuntary separation or discharge (Army Regulation 635–200) must be flagged (except entry-level performance and conduct separations initiated under Army Regulation 635–200). The effective date of the Flag will be the date the commander signs the intent to separate notification memorandum to the Soldier or the date HQDA initiates an involuntary separation action. Remove the Flag when Soldier is reassigned to a transition point (Active Component). (2) "Drug abuse adverse action” (Flag code U). Initiate a Flag following: initiation of proceedings under UCMJ, Article 15; court-martial proceedings (immediately upon preferral of charges or pretrial confinement); civilian criminal charges, restraint, or confinement; pending a nonpunitive memorandum of reprimand, censure, or admonishment; or other disciplinary action for drug related offenses including, but not limited to, positive drug test in accordance with Army Regulation 600–85 (The Army Substance Abuse Program(ASAP)). The effective date of the Flag is the date of the offense. A Flag is initiated based on the adverse action resulting from the drug abuse- related incident. A Flag may not be initiated based on referral, screening, or enrollment into the ASAP. For first time drug offenses remove the Flag (code D) when Soldier is reassigned to the transition point for separation or, if separation authority retains the Soldier, remove the Flag when punishment is complete, to include any period of suspension, probation, or parole. For second-time or higher drug offenses, remove the Flag when Soldier is reassigned to the transition point for separation (Active Component). c. Chapter 3 (Prohibitions and Retention of Flag Personnel), paragraph 3-1 (Actions prohibited by a flag), states a properly imposed flag prohibits the following personnel actions unless otherwise specified: * appointment * reappointment * reenlistment * extension 3. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes. An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. However, those individuals are ineligible unless a waiver is granted. 4. Army Regulation 635-5-1 (Separation Program Designator Codes) provides that the SPD code LBK is the appropriate code to assign to Soldiers involuntarily released from active duty upon completion of required active service. This code is used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment under the provisions of Army Regulation 635-200, chapter 4 due to completion of enlistment and transferred to the Reserve components to complete their military service obligation. The SPD/RE Code Cross Reference Table indicates that RE code 3 is the proper code to assign members separated with SPD code LBK. 5. The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption. In this instance, the "presumption of regularity" is based on Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190005946 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1