MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 May 2003
         DOCKET NUMBER: AR2002078196

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Roger W. Able		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his reenlistment eligibility code (RE Code) be changed.

APPLICANT STATES: In effect, that the defective enlistment was due to an error by the Retention NCO (noncommissioned officer) in his battalion. The applicant was told that he was eligible for a bonus by his Retention NCO, and only after signing the contract and reenlisting, was he informed that he did not qualify for the bonus; therefore, his contract was voided. He states that he was required to get a waiver to enlist in the Florida National Guard due to the reentry code 3. He is on a promotion list and once promoted, he plans to reenlist for active duty. His recruiter has informed him that the reentry code of 3 will prevent him from returning to active duty for 10 years. After speaking with his present chain of command, and various recruiters in the area, he was told that he should not have received a reentry code of 3 since the discharge was honorable and the defective enlistment was not due to any wrong doing on his part.

EVIDENCE OF RECORD: The applicant's military records show:

On 30 July 1984, the applicant enlisted in the US Army Reserve Delayed Entry Program for a period of 8 years. He enlisted in the Regular Army for 2 years on 20 February 1985 and was trained as a Light Weapons Infantryman, military occupational specialty, 11B. The applicant was released from active duty at the end of his term of enlistment in the rank and pay grade of Specialist 4, E-4.

The applicant enlisted in the Florida Army National Guard on 20 February 1987 on his release from active duty. On 2 November 1989, he enlisted in the Regular Army and remained on active duty through two enlistment periods until he was discharged on 19 November 1997.

During his service, the applicant was awarded the Army Achievement Medal (3rd Award), the Good Conduct Medal, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Expert Marksmanship Qualification Badge with Grenade Bar, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Master Parachutist Badge, Parachutist Badge, Air Assault Badge, the Ranger Tab, and the Scuba Diver Badge.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records; however, the applicant's records contain a duly constituted DD Form 214, signed by him, which shows that he was honorably discharged on 19 November 1997, under the provisions of AR 635-200, chapter 7, section IV, based on a defective enlistment agreement.

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He had served 8 years and 18 days of total active service for the period covered by the DD Form 214. In addition, the applicant had 2 years prior active service and 3 years, 3 months and 2 days prior inactive service. He was given a Separation Code of MDS. He was awarded an RE Code of 3.

Discharge under the provisions of AR 635-200, chapter 7, section IV, is effected when a defective enlistment agreement or unfulfilled enlistment commitment is discovered. A defective enlistment exists when the soldier was eligible for enlistment in the Army but did not meet the prerequisites for the option for which enlisted. These situations exist in the following circumstances: (a) a material misrepresentation by recruiting personnel, upon which the soldier reasonably relied and thereby was induced to enlist for the option, or (b) an administrative oversight or error on the part of the recruiting personnel in failing to detect that the soldier did not meet all the requirements for the enlistment commitment, and (c) the soldier did not knowingly take part in creation of the defective enlistment. Army soldier will be discharged unless they request transfer to the US Army Reserve. Soldiers discharged under this paragraph will not be held to a statutory service obligation.

AR 601-210 provides the guidance for the issuance of RE Codes upon separation from active duty. 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 reason for discharge. It states, in pertinent part, that these codes are not to be considered derogatory in nature; they are simply codes that are used for identification of an enlistment processing procedure.

This same regulation covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR. Chapter 3 prescribes basic eligibility for prior service applicants for enlistment. The chapter includes a list of armed forces RE Codes, including RA RE Codes.

RE-1 applies to persons who are completing their period of active service who are eligible for immediate reenlistment. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

The information the applicant alleges to have received from his recruiter is incorrect. Individuals released from active duty or discharged from the Army and who are awarded an RE Code of 3 are not prevented from returning to active duty for 10 years.

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As indicated above, an RE Code of 3 is a waivable disqualification. Since enlistment criteria does change, and since an individual has the right to apply for a waiver, if the applicant desires to reenlist, he should visit his local recruiting station to determine if he should apply for a waiver.

Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table, then in effect, states that an RE code of 3 will be given when the SPD is MDS.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant was awarded Separation Code MDS. The RE-3 Code that was given is correct. There is no error in his RE Code. The applicant is disqualified from reenlistment but the disqualification is waivable.

2. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

3. This Board operates under the standard of presumption of regularity in governmental affairs. This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper. In the absence of evidence of the contrary, it must be presumed that the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations. Accordingly, it must also be presumed that the RE Code awarded is appropriate under the circumstances.

4. Since enlistment criteria do change and the applicant has expressed a desire to return to service in the Regular Army, and since an individual has the right to apply for a waiver, he should visit his local recruiting station to apply for a waiver.

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5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__aao___ __tap___ __rwa___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078196
SUFFIX
RECON
DATE BOARDED	20030515
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.	100.0300
3.
4.
5.
6.