RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011742 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Samuel Crumpler

Chairperson

Mr. Robert Rogers

Member

Mr. Patrick H. McGann Jr.

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 separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 
25 April 1996 be changed from involuntary to voluntary separation.

2.  The applicant states, in effect, that he voluntarily separated from the military at the end of his term of service.  He further states that his records indicate illegal drug abuse while in the military and he doesn't want other agencies to think he was separated as a result of drug abuse. 

3.  The applicant provides his DD Form 214 and a memorandum from the Review Boards Agency Support Division, St. Louis, Missouri, dated 27 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 25 April 1996.  The application submitted in this case is dated 9 August 2006.

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 enlisted in the Regular Army on 26 April 1993 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 19K (M1 Abrams Armor Crewman).

4.  A DA Form 2A (Personnel Qualification Record, Part I), prepared on 13 March 1996, shows in (Section II Qualification Date) item 33 that the applicant was not eligible for reenlistment.

5.  On 25 April 1996, the applicant was released from active duty at his normal expiration of term of service (ETS) in pay grade E-2.  He was given a reentry (RE) code of 3 and a separation program designator (SPD) code of LBK 

(involuntary release from active duty or transfer upon completion of required 
active service, to be used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment).

6.  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 U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

7.  RE code 3 applies to persons not qualified for continued Army service but the disqualification is waivable.  

8.  Army Regulation 601-210, chapter 2 states in pertinent part that Soldiers in the rank of PV2 and below, regardless of years of service completed, are not authorized reenlistment.  

9.  The SPD Code/RE Code Cross Reference Table, in effect at the time, provided that when the SPD code was LBK then RE code 3 would be given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant separated upon completing his term of enlistment in the grade of E-2 which made him ineligible for reenlistment.  His separation was considered an involuntary release from active duty because he did not meet the reenlistment criteria and he was appropriately given an SPD code of LBK.  Because of the SPD code of LBK the applicant was properly given the RE code of “3.”  The SPD code has nothing to do with use of illegal drugs.

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

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 April 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
24 April 1999.  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

__SC ___  __RA ___  ___PHM_  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.




____ Samuel Crumpler___
          CHAIRPERSON




INDEX

CASE ID
AR20060011742
SUFFIX

RECON

DATE BOARDED
3 APRIL 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
110.0200.0000
2.

3.

4.

5.

6.