RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 10 November 2005
	DOCKET NUMBER:  AR20050000927 


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


Mr. Carl W. S. Chun

Director

Ms. Prevolia A. Harper

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Ms. Linda D. Simmons 

Member

Mr. Michael J. Flynn

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reentry (RE) code of RE-2 should be changed to a code which would allow him to join the Air National Guard (ANG).

2.  The applicant states, in effect, that he was separated early to attend school and believes the RE code he received was in error and is delaying his enlistment in the ANG.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 January 1993.  The application submitted in this case is dated 20 December 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he enlisted in the Regular Army and entered active duty on 2 May 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B10 (Food Service Specialist) and the highest rank he attained and held while serving on active duty was specialist four.

4.  The applicant’s complete military record is not available and does not contain his discharge processing documents.

5.  On 31 January 1993, the applicant was honorably released from active duty (REFRAD) and transferred to the United States Army Reserve (USAR) Control Group to complete his military service obligation.


6.  The DD Form 214 the applicant was issued upon his REFRAD shows that he completed a total of 2 years and 9 months of active military service.  This document further confirms that the applicant was separated under the provisions of paragraph 5-17, Army Regulation 635-200 and that the reason for his separation was to attend school.  However, it incorrectly shows that based on this authority and reason for separation, he was assigned a Separation Program Designator (SPD) code of MFF and an RE code of RE-2.  The applicant authenticated this document with his signature on the date of his separation.  

7.  Army Regulation 635-200 provides the Army’s enlisted separation policy.  Paragraph 5-17, in effect at the time, provided the policy for early separation to further education.  It stated, in pertinent part, that Soldiers could be discharged or REFRAD for the convenience of the Government, up to 90 days before expiration of term of service, in order to attend a specific term at a college, university, vocational school, or technical school.  

8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The regulation in effect at the time identified the SPD code of MCF as the appropriate code to assign RA Soldiers separated under the provisions of paragraph 5-17, Army Regulation 635-200, who were separated early to attend civilian school.  The SPD/RE Code Cross Reference Table in effect at the time also established RE-3 as the proper 
RE code to assign Soldiers separated with an SPD code of MCF.  Current regulations still provide for the assignment of an RE-3 code to Soldiers separated early to attend school. 

9.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his RE-2 code was in error was carefully considered.  However, by regulations in effect at the time and currently in effect, Soldiers who are separated early to attend school are assigned an RE-3 code.  


2.  The applicant’s record confirms he was separated under the provisions of paragraph 5-17, Army Regulation 635-200, in order to attend school.  It further shows that based on this authority and reason for his separation, he was given the incorrect SPD and RE codes.

3.  The applicant was given the incorrect SPD and RE codes at the time of his discharge.  The applicant should have been given a SPD code of MCF with an RE-3 code.  Instead, he was given a SPD code of MFF with an RE-2 code (which does not require a waiver for reenlistment).  Since correcting the applicant’s SPD code to MCF would require an RE-3 code and a waiver for reenlistment, it would not be equitable to change his DD 214 at this time.

4.  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.

5.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reenlistment.  
The RE-2 code currently shown on the applicant’s DD Form 214 does not require a waiver for his enlistment in the Air National Guard.  If the applicant still desires to enlist in the Air National Guard, he should continue to work with a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Air Force. 

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 January 1993; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 January 1996.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MKP__  __LDS __  __MJF    _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




    _Margaret K. Patterson_
          CHAIRPERSON




INDEX

CASE ID
AR20050000927
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051110
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.