IN THE CASE OF: BOARD DATE: 12 October 2022 DOCKET NUMBER: AR20220001831 APPLICANT’S REQUEST: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a Reentry Eligibility (RE) code of "1" rather than "3." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states his RE code should be changed from "3" to "1" because, due to no fault of his own, he was barred from reenlisting because he was not granted a security clearance prior to reaching his Expiration Term of Service (ETS) date. However, two months after he was separated, he was granted a Top-Secret security clearance. He believes his separation was unjust because he was willing to remain in the Army and did not have any control over the length of time it would take to process his clearance. 2. On 20 March 2015, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) under the Department of Defense (DoD) Military Accessions Vital to the National Interest (MAVNI) pilot program, with the intent of serving in the Regular Army on active duty for a period of six years. Under MAVNI, military services were authorized to recruit certain legal aliens whose skills are considered to be vital to the national interest. Those holding critical skills – physicians, nurses, and certain experts in selected languages with associated cultural backgrounds – were eligible. The criteria for enlistment in the MAVNI program was as follows: a. Eligibility for Health Care Professionals: * Applicants must fill medical specialties where the service has a shortfall * Applicants must meet all qualification criteria required for their medical specialty, and the criteria for foreign-trained DoD medical personnel recruited under other authorities * Applicants must demonstrate proficiency in English * Applicants must commit to at least 3 years of active duty, or 6 years in the Selected Reserve b. Eligibility for Enlisted Individuals with Special Language and Culture Backgrounds * Applicants must possess specific language and culture capabilities in a language critical to DoD * Applicants must demonstrate a language proficiency * Applicants must meet all existing enlistment eligibility criteria * Applicants must enlist for at least 4 years of active duty c. Upon enlistment, each Future Soldier completes, with an Army Recruiter, a packet for entry into the DEP that consists of the following: * Oral Proficiency Interview * Medical Forms (DD Form 2807-1, DD Form 2807-2, DD Form 2808) * DEP Enlistment Document (DD Form 4) * DD Form 369 (Police Check) 3. In conjunction with enlistment under MAVNI, the applicants were subject to a thorough background investigation prior to entering active duty. Most applicants were held in the USAR DEP pending completion of background investigations. Service in the DEP is limited by statute to 730 days. 4. On 22 September 2015, the applicant enlisted in the Regular Army for a period of 6 years. Upon completion of initial entry training, he was assigned to a unit in Katterbach, Germany. 5. Under Secretary of Defense Memorandum, dated 30 September 2016, Subject: MAVNI Pilot Program Extension, was developed in coordination with the Under Secretary of Defense for Intelligence and extended the MAVNI pilot Program through 30 September 2017. This memorandum also stipulated that each Military Department would prohibit Category 2 language/associated culture applicants from shipping to basic training or serving for any period of time on active duty until the Military Service certifies in writing to the Under Secretary of Defense for Personnel and Readiness (USD (P& R)) and the Under Secretary of Defense for Intelligence (USD(I)) their ability to meet administrative, security, and suitability protocols prior to accessing any new applicants into the DEP. The guidance within this memorandum applied to all MAVNls currently in the DEP, all future applicants, and all Reserve accessions who entered Service or shipped to basic training on or after the date of this memorandum. This memorandum also stipulated: a. All personnel accessed through the MAVNI program since its inception must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense (e.g. active duty, Reserve, government civilian, or contractor). b. No Service member accessed under language/associated culture MAVNl eligibility is eligible for a security clearance until they have satisfied time in service requirements and have received an updated and favorable determination by the Consolidated Adjudications Facility. 5. In 2017, the Army realized that due to significant backlogs, numerous MAVNI applicants were at risk of reaching the statutory limit of 730 days in the DEP prior to completion of the required background investigations. In order to avoid the potential loss of numerous enlistees, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA(M&RA)) directed the United States Army Recruiting Command (USAREC) to have recruiters contact each MAVNI enlistee to afford them an opportunity to opt into a mass petition to the ABCMR to have their time in the DEP extended beyond the statutory 730 day limit in order to allow additional time for their background investigations to be completed. 6. On 17 August 2017, the ASA(M&RA) petitioned the ABCMR to correct enlistment dates for all interested MAVNI enlistees by shifting them to one year later than the dates on their contracts. The ABCMR granted full relief for 1,455 applicants in Docket Number AR20170012702 on 3 October 2017. 7. The applicant was promoted to the rank/grade of Sergeant (SGT)/E-5 effective 1 September 2018. He was reassigned to a unit at Camp Humphreys in the Republic of Korea on 7 March 2019. 8. The applicant's DA Form 2166-9-1 (Noncommissioned Officer Evaluation Report (SGT)) rendered for the period from 7 March 2020 through 6 March 2021 shows he received favorable ratings and comments regarding his performance and potential from both his rater and senior rater. 9. The applicant's ERB rendered on 9 November 2020 shows in: * Section II (Security Data) – No determination had been made on his security clearance * Section III (Service Data) – He was prohibited from reenlisting * Section IV (Personal Data) – He was born in Russia, but he was a U.S. citizen * Section V – (Foreign Language) – He was proficient in Russian and Ukranian 10. Orders and a DD Form 214 show the applicant was released from active duty (REFRAD) on 21 September 2021 and transferred to the USAR Control Group (Annual Training) in the rank/grade of SGT/E-5. His DD Form 214 shows in: (1) block 12 (Record of Service) – He completed 6 years of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized) - He was awarded or authorized the Army Commendation Medal, Army Achievement Medal (4th Award), Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), and Basic Aviation Badge. (3) block 18 (Remarks) - He was subject to active-duty recall, muster duty and/or annual screening. He completed his first term of service. (4) block 24 (Character of Service) - His characterization of service was Honorable. (5) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 4. (6) block 26 (Separation Code) - His Separation Program Designator (SPD) Code was "MBK." (7) block 27 (Reentry Code) - His RE Code was "3." (8) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Completion of Required Active Service." 11. 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. RE code "3" applies to Soldiers who are not considered fully qualified for reentry unless a waiver is granted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. One potential outcome was to deny relief based on lack of evidence to show the applicant received his security clearance two months after his separation. However, upon review of the applicant’s petition and available military records Board determined at no fault of the applicant fell in with the numerous MAVNI applicants who were at risk of reaching the statutory limit of 730 days in the DEP prior to completion of the required background investigations. The Board noted that in order to avoid the potential loss of numerous enlistees, the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA(M&RA)) directed the United States Army Recruiting Command (USAREC) to have recruiters contact each MAVNI enlistee to afford them an opportunity to opt into a mass petition to the ABCMR to have their time in the DEP extended beyond the statutory 730 day limit in order to allow additional time for their background investigations to be completed. 2. The Board agreed the applicant was among the 1, 455 applicant that were shifted out for an additional twelve months. Based on the preponderance of evidence the Board agreed correction to the applicant’s DD Form 214 to show a Reentry Eligibility (RE) code of "1" rather than "3” is warranted. Therefore, the Board granted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending his DD Form 214 to show in block 27 (Reentry Code) 1. 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 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, USAR, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 2. Army Regulation 635-5-1 (Personnel Separations – SPD Codes) implements Department of Defense policy for standardization of certain entries on DD Form 214. In pertinent part, this regulation stipulates that SPD "MBK" is the appropriate SPD code to assign when an enlisted Soldier is REFRAD upon completion of required Active Service. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 4 provides a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. 4. Under Secretary of Defense Memorandum, dated 30 September 2016, Subject: MAVNI Pilot Program Extension, was developed in coordination with the Under Secretary of Defense for Intelligence and extends the MAVNI pilot Program through 30 September 2017. The Military Department will prohibit Category 2 language/associated culture applicants from shipping to basic training or serving for any period of time on active duty until the Military Service certifies in writing to the Under Secretary of Defense for Personnel and Readiness (USD (P& R)) and the Under Secretary of Defense for Intelligence (USD(I)) their ability to meet administrative, security, and suitability protocols mandated herein prior to accessing any new applicants into the DEP. a. The guidance within this memorandum applies to all MAVNls currently in the DEP, all future applicants, and all Reserve accessions who enter Service or ship to basic training on or after the date of this memorandum. Those persons in the DEP who were recruited under the eligible language list in effect since 2014 may continue in the accession process, but they must be satisfactorily screened under the revised screening protocols found in this memorandum. b. All personnel accessed through the MAVNI program since its inception must be continuously monitored and accounted for throughout the duration of their affiliation with the Department of Defense (e.g. active duty, Reserve, government civilian, or contractor). c. No Service member accessed under language/associated culture MAVNl eligibility is eligible for a security clearance until they have satisfied time in service requirements and have received an updated and favorable determination by the Consolidated Adjudications Facility. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1