RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050013723


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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 the separation code (JBK) shown
on his DD Form 214, Certificate of Release or Discharge from Active Duty,
be changed.

2.  The applicant states, in effect, that changing the separation code on
his DD Form 214 will allow him to be considered for an AGR (Active Guard
Reserve) position.  The applicant adds that he is willing to reimburse the
Government the full involuntary separation pay he received.  He has 17
years of active duty service and he has completed an AGR packet that is
ready for submission to the State of Maryland, Military Department.

3.  The applicant provides a copy of his official Army photograph; a copy
of the application that he prepared for consideration of an AGR position; a
copy of four Noncommissioned Officer Evaluation Reports; a DA Form 5500-R,
Body Fat Content Worksheet; a copy of a DA Form 705, Army Physical Fitness
Test Scorecard, a copy of his Personnel Qualification Record-Enlisted,
prepared on 6 September 2005; a copy of two DD Forms 214 (dated 26 November
1999 and 26 January 2005) and a copy of his DA Form 2-1, Personnel
Qualification Record, Part II; in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice or error, which
occurred on 26 November 1999.  The application submitted in this case is
dated 14 September 2005.

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 limitation 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 evidence shows the applicant enlisted on 14 November 1984 in the
Regular Army and continued to serve through a number of reenlistments until
26 November 1999.
4.  The applicant was assigned to the US Army Transition Point, Fort
Stewart, Georgia, by Orders 172-0004, Headquarters, 3rd Infantry Division
(Mechanized) and Fort Stewart, dated 21 June 1999.  These orders state the
applicant was entitled to full separation pay in accordance with Title 10,
US Code 1174, contingent with his enlistment in the Ready Reserve for a
period of 3 years.

5.  On 26 November 1999, the applicant was honorably discharged, in the
rank/pay grade, Sergeant/E-5, under the provision of Army Regulation (AR)

635-200, Chapter 4, at the completion of required active service.  On the
date of his discharge, the applicant had completed 15 years and 13 days
creditable service, with no lost time.  The evidence shows he attained
the rank/pay grade, Sergeant/E-5, on 8 November 1988.  There is no
evidence, and the applicant provided none, to show he was on an order of
merit list for promotion to the rank and pay grade Staff Sergeant/E-6.

6.  Item 18, of the applicant's DD Form 214, with an effective date of
separation of 26 November 1999, shows he was involuntarily separated from
the Army and received separation pay in the amount of $33,193.80.

7.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the
entry "JBK."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows
the entry "3" and the narrative reason for his separation is, "Completion
of Required Active Service."

8.  When he was involuntarily discharged, the applicant was serving in pay
grade E-5 and had completed 15 years and 13 days creditable service, with
no lost time. On his discharge date, the applicant had exceeded the
reenlistment eligibility point of 13 years for Soldiers serving in the pay
grade E-5 established in AR 601-280, Chapter 2, paragraph 2-22.

9.  The applicant's Army National Guard Retirement Points History Statement
shows he enlisted in the Army National Guard on 27 November 1999.

10.  The applicant was ordered to active duty on 30 January 2003, in
support of Operation Enduring Freedom.  He was released from active duty
and was transferred to the control of the Florida Army National Guard on 26
January 2005.  The DD Form 214 he was provided on his release from this
period of active duty shows his character of service to have been
honorable; he was given a separation code of "LBK"; the RE Code that was
entered on his DD Form 214 is, "NA"; and the narrative reason for his
separation is, "Completion of Required Active Service."

11.  On 30 January 2003, the applicant was ordered to active duty in
support of Operation Enduring Freedom in accordance with Title 10, United
States Code section 12302.  The applicant was honorably released from
active duty at the completion of required active service on 26 January 2005
in the rank/pay grade, Staff Sergeant/E-6.  Item 12.h (Record of Service
(Effective Date of Pay Grade), of the applicant's DD Form 214, shows he was
promoted to pay grade E-6 on 6 May 2002.

12.  The applicant was discharged from the Army National Guard, and as a
Reserve of the Army, in accordance with Orders P178-065, Department of
the Army and Air Force, Florida Army National Guard, dated 27 June 2005.
The applicant was issued a NGB Form 22, National Guard Bureau Report of
Separation and Record of Service, with an effective date 26 June 2005.
This form shows the applicant was honorably discharged under the
provisions of NGR (National Guard Regulation) 600-200, paragraph 8-26i,
for expiration term of service, with no obligation.

13.  The reenlistment eligibility code applied in Item 26 (Reenlistment
Eligibility), of the applicant's NGB Form 22, is RE-1.

14.  The applicant requests, in effect, that the separation code (JBK)
shown on his DD Form 214, with an effective date 26 November 1999, be
changed; however, it is not the separation code which is precluding his
acceptance for an AGR position with the Army National Guard, the State of
Maryland.  The element that precludes his entry into the program is the
RE Code, "3."

15.  AR 601-280, Chapter 2, paragraph 2-22, states, in pertinent part, "a
Soldier must not exceed the reenlistment eligibility point below by more
than 29 days before expiration of contracted service (i.e., reenlistment or
extension).  Soldiers who have attained local order of merit list or
official DA promotion list status will be considered for reenlistment under
the ineligibility point for the grade to which they will be promoted."
Paragraph 2-22.e. states, "Soldiers in grades E-4 through E8 who have
attained official DA or local order of merit promotion list status will be
considered for reenlistment under criteria of the grade to which they will
be promoted.  For example, an E4 on the standing list for E5 may be
reenlisted or extended to complete 13 years (and not to exceed 29 days) of
active Federal service – no grade waiver required.  However, retention
beyond 13 years (29 days) of active Federal service is not authorized – no
grade waiver allowed.
16.  AR 635-200 provides the basic authority for the separation of enlisted
personnel.  Chapter 4 of this regulation sets forth the policy for the
separation of enlisted personnel at the expiration of their enlistment or
fulfillment of service obligation.

17.  Title 10, US Code, section 1174, states that "a regular enlisted
member of an armed force who is discharged involuntarily or as a result
of the denial of the reenlistment of the member and who has completed six
or more, but less than 20 years of active service immediately before that
discharge is entitled to separation pay competed under subsection (d)
unless the Secretary concerned determines that the conditions under which
the member is discharged do not warrant payment of such pay."  Subsection
(e)(1)(A) of this section states, "As a condition of receiving separation
pay under this section, a person otherwise eligible for that pay shall be
required to enter into a written agreement with the Secretary concerned
to serve in the Ready Reserve of a reserve component for a period of not
less than three years following the person's discharge or release from
active duty."  Subsection (h)(1), of this section states, "A member who
has received separation pay under this section, or separation pay,
severance pay, or readjustment pay under any other provision of law,
based on service in the armed forces, and who later qualifies for retired
or retainer pay under this title or title 14 shall have deducted from
each payment of such retired or retainer pay so much of such pay as is
based on the service for which he received separation pay under this
section or separation pay, severance pay or readjustment pay under any
other provision of law until the total amount deducted is equal to the
total amount of separation pay, severance pay and readjustment pay
received."

18.  Pertinent Army regulations provide that prior to discharge or release
from active duty, Soldiers will be assigned reentry codes, based on their
service records or the reason for discharge.  AR 601-210 covers eligibility
criteria, policies, and procedures for enlistment and processing into the
Regular Army and the US Army Reserve.  Chapter 3 of that regulation
prescribes basic eligibility for prior service applicants for enlistment.
That chapter includes a list of Armed Forces reentry codes, including RA RE
Codes.

19.  RE Code 4 applies to individuals not qualified for continued service
due to being separated from the service with non-waivable disqualifications
such as, as an example, a person with a HQDA or a local bar to
reenlistment.

20.  RE Code 3 applies to persons not fully qualified for continued Army
service and personnel who are discharged, but the disqualification is
waivable.

21.  RE Code 1 applies to persons completing their term of service and who
are considered fully qualified to reenter the Army.

22.  The SPD/RE Code Cross Reference Table, dated October 1999, provides
instructions for determining the RE Code for Active Army Soldiers and
Reserve Component Soldiers separated for cause.  It also shows the SPD code
with a corresponding RE Code and states that more than one RE Code could
apply.  The Soldier’s file and other pertinent documents must be reviewed
in order to make a final determination.  The SPD code of "JBK" has a
corresponding RE code of "3."

23.  AR 635-5-1, in effect at that time, prescribed the specific
authorities (regulatory, statutory, or other directives), the reasons for
the separation of members from active military service, and the separation
code to be used for these stated reasons.  The regulation shows that the
separation code "JBK", as shown on the applicant's DD Form 214, is
appropriate for discharge when the narrative reason for discharge is
"Involuntary Separation at the Completion of Required Active Service."  The
authority for discharge under this separation code is AR 635-200, Chapter
4.

24.  The criteria for entry into the AGR Program are in National Guard
Regulation (NGR) 600-5, Chapter 2.  To qualify for initial entry into the
AGR Program, applicants must meet the requirements in AR 135-18,
paragraphs 2-1, 2-2, and 2-3. In addition, Soldiers must meet the
requirements of Paragraph 2-2 h and i, NGR 600-5 which states that
enlisted Soldiers must meet reenlistment or extension standards in NGR
600-200, Chapter 7.  Soldiers must have at least 3 years remaining on
first day of initial AGR tour.  Applicant must reenlist or extend
in order to meet this requirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge on 26 November 1999 was accomplished in
compliance with applicable regulations on completion of his active service.

2.  The evidence show the applicant was involuntarily discharged from the
Regular Army in the rank of Sergeant.  At the time of his discharge, the
applicant had completed 15 years and 13 days creditable service.  There is
no evidence he was on a standing promotion list for promotion to pay grade,
E-6.  The applicant was therefore beyond the reenlistment eligibility point
of 13 years for Soldiers in pay grade E-5.

3.  On his discharge from the Regular Army, the applicant's DD Form 214
was annotated to show he was honorably discharged; his separation was in
accordance with AR 635-200, Chapter 4; the separation code applied to his
DD Form 214 was "JBK"; RE Code "3" was entered in its appropriate space on
the DD Form 214; and the narrative reason for his discharge was shown to
be, "Completion of Required Active Service."

4.  The applicant's separation code, "JBK" is consistent with the basis for
his separation and the RE Code applied to his DD Form 214 is consistent
with the separation code; therefore, the applicant is not entitled to a
change of his separation code or his RE Code.

5.  In Item 18, of the applicant's DD Form 214, a remark was made that the
applicant was, "Entitled to Full Involuntary Separation Pay."  The amount
of separation pay to which the applicant was entitled was $33,193.80.

6.  The applicant is reminded, for future reference, of the provisions of
Title 10, US Code, section 1174, which states, "A member who has received
separation pay under this section, or separation pay, severance pay, or
readjustment pay under any other provision of law, based on service in
the armed forces, and who later qualifies for retired or retainer pay
under this title or title 14 shall have deducted from each payment of
such retired or retainer pay so much of such pay as is based on the
service for which he received separation pay under this section or
separation pay, severance pay or readjustment pay under any other
provision of law until the total amount deducted is equal to the total
amount of separation pay, severance pay and readjustment pay received."

7.  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.

8.  In view of the circumstances in this case, the assigned separation code
was and still is appropriate.

9.  The applicant is advised that if he is committed to accepting an AGR
assignment, he should meet with an Army National Guard Recruiter and
process a request for waiver of the RE Code that was applied to his DD Form
214 when
he was discharged from active duty in the Regular Army on 26 November 1999.
 As indicated in the applicable regulation, and in this Record of
Proceedings, RE Code "3" is subject to waiver action.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 November 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 25 November 2002.  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

__D ____  __A_____  ____JRH_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.




                                  _____James E. Anderholm____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050013723                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1021 |100.0000                                |
|2.   189                |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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