RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 JULY 2006
      DOCKET NUMBER:  AR20050015197


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Allen Raub                    |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Peguine Taylor                |     |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 that his Reentry (RE) Code be changed from RE-3
to RE-1.

2.  The applicant states he has an improper RE Code and would like to
reenlist in the Regular Army.  He states that he was never flagged, never
refused any Army duties, and was never court-martialed.  He noted he
continued to serve in the United States Army Reserve following his release
from active duty and recently deployed to Iraq in support of Operation
Iraqi Freedom.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 December 1999.  The application submitted in this case
is dated
7 October 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 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.  Records available to the Board indicate the applicant enlisted in the
Regular Army and entered active duty on 6 July 1994 after briefly serving
in the United States Army Reserve.  In December 1996 he reenlisted for 3
years and on
1 December 1999 he was voluntarily released from active duty and
transferred to the United States Army Reserve to complete his statutory
service obligation.  His separation date coincided with his scheduled
expiration date based on his December 1996 reenlistment action.

4.  His separation document notes that his separation code was MBK and that
his RE Code was 3.  The applicant had a total of slightly more than 5 years
and 10 months of active Federal service and a little over 9 months of
inactive service. He was separated in pay grade E-4.

5.  Army Regulation 635-5-1 states that a separation code of MBK will be
assigned to individuals who are eligible to reenlist or who have a DCCS
(declination of continued service) statement in force, who are released
from active duty on completion of their enlistment contract and are
transferred to the United States Army Reserve to complete their military
service obligation.

6.  A “cross-reference” chart, provided by officials from the separations
branch at the United States Army Human Resources Command-Alexandria, notes
that an RE-1 or RE-3 may be the appropriate RE Code for individuals who
receive a separation code of MBK.  It notes that RE-3 is appropriate in
cases where an individual is denied immediate reenlistment, had a DCCS in
effect, fails to meet grade and service criteria for reenlistment, has time
lost due to AWOL (absent without leave) or confinement, or who has an
immediate reenlistment prohibition code of 9T.

7.  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
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
Codes, including RA RE Codes.  RE-3 applied to Soldiers serving in pay
grade E-4 who were precluded from reenlisting when such a reenlistment
action would result in a separation date beyond 8 years of active Federal
service.  The retention control point for Soldiers in pay grade E-4 was 8
years at the time of the applicant’s release from active duty.

8.  The RE-3 Code is waivable.  However, waivers are dependent on the needs
of the service in which an individual seeks to enlist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from active duty in pay grade E-4 with
nearly 6 years of active Federal service.  As such, he was not eligible to
reenlist, and received a SPD code of MBK and an RE Code of 3.  The RE Code
was proper, based on the circumstances of his separation.  The applicant’s
inability to return to active duty does not serve as a basis to change a
correctly assigned RE Code.




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

3.  The applicant is advised that although the Board has determined that
his
RE-3 was properly assigned, this does not mean that he is totally
disqualified from returning to military service.  The disqualification upon
which the RE-3 Code was based may be waived for enlistment purposes.  The
applicant is advised that if he desires to enlist, he should contact a
local recruiter who can best advise him on his eligibility for returning to
military service.  Those individuals can best advise a former service
member as to the needs of the service at the time and may process
enlistment waivers for both the applicant’s RE Code and his reason for
separation.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 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

__AR ___  ___LD___  __PT ___  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.




                                  _______Allen Raub__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015197                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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