RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 May 2007
      DOCKET NUMBER:  AR20060015631


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Eddie L. Smoot                |     |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.

2.  The applicant states his RE code should be a 1 or 2 on his most recent
DD Form 214 (Certificate of Release or Discharge from Active Duty) because
he fulfilled his contract and received an honorable discharge.  He is
attempting to enlist in the reserves and needs this code corrected as soon
as possible as most branches are not granting waivers.

3.  The applicant provides two DD Forms 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 July 1997.  The application submitted in this case is
dated         31 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.  After having had prior service, the applicant enlisted n the Regular
Army on    7 October 1992 in the rank and grade of Sergeant, E-5.  He was
assigned to Fort Belvoir, VA on an unknown date.  He was honorably
discharged on 11 July 1995 and immediately reenlisted on 12 July 1995 for a
period of 2 years.

4.  The applicant received assignment instructions for Fort Bragg, NC.  On
         6 November 1996, he signed a DA Form 4991-R (Declination of
Continued Service Statement).  The form indicated he was advised as to the
options available to acquire sufficient remaining service to satisfy the
service-remaining requirement to accomplish the reassignment but had
refused to take the necessary action.  He acknowledged that refusal to take
action to comply with the operational commitment would, in part, prohibit
him from reenlisting or extending his enlistment or from applying for
reentry into the Active Army for a period of at least 93 days if separated
at normal expiration term of service (ETS).

5.  On 11 July 1997, the applicant was honorably discharged from active
duty upon his ETS.  Effective the next day, he enlisted in the U. S. Army
Reserve (USAR).

6.  On 26 March 1999, the applicant was transferred from a troop program
unit to the Individual Ready Reserve (IRR) as an unsatisfactory
participant.  On 15 July 2003, he was honorably discharged from the USAR.

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 USAR.  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.

8.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.

9.  Army Regulation 601-210, paragraph 4-13d states a waiver is required
for any applicant who was separated from an Army component with a field bar
to reenlistment.

10.  Army Regulation 601-210, paragraph 4-17c (Reserve Component
Separations or Transfers) states a waiver is required for any applicant who
has been transferred to the IRR for being an unsatisfactory participant and
is not currently serving satisfactorily in a troop unit.  A waiver is not
required after         6 months have elapsed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had signed a declination of continued service rather than
comply with his assignment instructions to Fort Bragg, NC.  Such a
declination of continued service was, in effect, a field bar to
reenlistment, as he acknowledged when he signed the declination statement.
Therefore, once he separated he was not permitted to enlist without a
waiver and he was properly given an RE code of 3.

2.  However, the applicant was presumably given a waiver to enlist in the
USAR. It appears that once that waiver was given, the RE code 3 given him
on 11 July 1997 should not have been a factor in any subsequent attempts to
enlist in the RA or the USAR.  Since the applicant was transferred to the
IRR as an unsatisfactory participant, that reason for transfer also would
have required a waiver to enlist in the USAR.  However, regulatory guidance
is that a waiver for that reason is not required after 6 months have
elapsed.  Therefore, it appears that neither the RE code of 3 nor his
transfer to the IRR as an unsatisfactory participant should have required a
waiver to enlist in the USAR (if that is what he meant by “reserves”).  The
applicant should inform his recruiters of this information; however, this
Board will not usurp the prerogatives of recruiting officials.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 July 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         10 July 2000.  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

__lds___  __jlp___  __els___  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.



                                  __Linda D. Simmons__
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20060015631                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070508                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |100.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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