RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070001570 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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 his records be corrected by changing his reentry code (RE Code) from 4R to allow return to active duty.

2.  The applicant states, in effect, that he took the early retirement option but did not know that the RE code he received was restrictive.  He further states that he held military occupational specialty (MOS) 51H (Construction Engineer) which, he states, was a shortage MOS.

3.  The applicant provides a copy of his Standard Certificate of Live Birth in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 December 1994, the date of his retirement.  The application submitted in this case is dated 25 January 2007.

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 records show that he enlisted on active duty on 6 October 1977 for a period of 3 years.  Records further show that the applicant completed basic combat and advanced individual training and was awarded MOS 51A (Construction Engineer).  

4.  The applicant's records show that he completed a 10 week  course at Fort Benning, Georgia on 17 November 1980 and was awarded MOS 51B (Carpentry and Masonry Specialist).

5.  The applicant's records show that his expiration term of service (ETS) date was 22 May 1986.  On 27 February 1986, he requested a 60 day drop.  Records show that his ETS date was adjusted and he was honorably discharged on 21 March 1986 and transferred to the U.S. Army Reserve Control Group.  The highest grade he achieved during this period was staff sergeant/pay grade E-6.
6.  On 27 March 1986, the applicant enlisted in the Missouri Army National Guard (MOARNG) for a period of 1 year.  He was further honorably discharged and transferred to the United States Army Reserve Control Group on 19 August 1986.

7.  After a break in service, the applicant enlisted in the Regular Army on 3 March 1987 for a period of 4 years.  On 2 June 1989, the applicant reenlisted for a period of 4 years which was extended by 5 months on 23 November 1991.  The applicant further reenlisted for a period of 4 years on 2 April 1993.

8.  On 7 May 1994, the applicant requested a voluntary early retirement effective 1 April 1995 under the fiscal year (FY) 1993 National Defense Authorization Act (NDAA), Public Law (PL) 102-484.

9.  Headquarters, 4th Infantry Division (Mechanized), Fort Carson, Colorado, Permanent Orders Number 278-0103 and Permanent Orders Number 278-0104 show that the applicant was honorably discharged from the Army and retired in accordance with Section 4403 of the FY93 NDAA (PL 102-484).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 16 years, 3 months, and 14 days of creditable active military service.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 establishes policy and prescribes procedures for separating Soldiers prior to expiration of enlistment or fulfillment of active duty obligation when specifically authorized.  Specific categories include reduction in force, strength limitations, or budgetary constrains.

11.  Section 4403 of the National Defense Authorization Act (NDAA) for Fiscal Year 1993 (FY 93) provided the Secretary of Defense a temporary additional force management tool with which to effect the drawdown of military forces through 1999.  During the initial active force drawdown period (23 October 1992 and ending on 1 October 1999), the Secretary of the Army may authorize an enlisted member with at least 15 but less than 20 years of creditable service a length of service retirement.

12.  The May 1994 message implementing the Fiscal Year 1995 Regular Army Enlisted Early Retirement Program listed eligible MOSs; the U. S. Total Army Personnel Command (PERSCOM) determined which applications would be approved based upon force structure and the best interest of the Army.  As a condition for early retirement, Soldiers must have been enrolled in the Public and Community Service (PACS) personnel registry.  (The intent of the early retirement provisions for PACS legislation was to authorize active duty personnel who were approved for early retirement to accrue additional military retirement credit if they took critical jobs).

13.  The May 1994 message implementing the Fiscal Year 1995 Regular Army Enlisted Early Retirement Program listed MOS 51H at the staff sergeant/pay grade E-6 level and with a minimum of 15 years of creditable active duty service (as of 31 August 1995) as eligible for early retirement.

14.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) 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 RE codes, including Regular Army RE codes:

		a.  RE–1 applies to persons completing their term of service who are considered qualified to reenter the Army; and 

	b.  RE-4R applies to a person who retired for length of service with 15 or more years of active federal service.

15.  Army Regulation 635-5-1 states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The RBE SPD code is the correct code for voluntary early retirement.  Additionally, the SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that “RE-4R” is the appropriate RE code for individuals who separated with an SPD code of RBE.

16.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 December 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 December 1997.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code, currently RE-4R, should be changed to allow return to active duty.

2.  The evidence confirms that the applicant’s RE code was assigned based on the fact that he was separated for early retirement under the FY93 of the NDAA (PL 102-484).  He received the appropriate RE code associated with his discharge.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must, 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.

4.  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 the applicant’s RE Code.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 December 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 December 1997.  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

__cg____  __rws___  __ksj___  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.



							Curtis Greenway
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070001570
SUFFIX

RECON

DATE BOARDED
20070802
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.

3.

4.

5.

6.