RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070005971 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

Member

Mr. Rowland C. Heflin

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, correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show that he was fully eligible for reenlistment at the time of his discharge.

2.  The applicant states, in effect, that the comment, "not recommended for further service", infers that he did not or could not do his job.  He further states that he was very good at his job and was approached numerous times by different personnel, to include the battalion commander, wanting him to reenlist.

3.  The applicant provides copies of his DD Form 214 and a portion of his Personnel Qualification Record (DA Form 2-1).

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 27 July 1978, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 13F1O (Fire Support Specialist).

3.  On 25 October 1978, the applicant was attached to the 4th Student Battalion, Fort Benning, Georgia, for the purpose of attending the Basic Airborne Training Course.  He successfully completed the 3-week course and was assigned to the 82nd Airborne Division, Fort Bragg, North Carolina. 

4.  On 1 April 1980, the applicant was promoted to the rank of specialist four, pay grade E4.


5.  On 3 June 1980, the applicant’s commander recommended that he be barred to reenlistment due to failure to meet medically established weight loss goals.  The applicant’s conduct and efficiency were otherwise noted as exemplary.  The applicant elected not to submit a statement on his own behalf.  The regimental commander recommended approval and the brigade commander approved the recommendation on 5 June 1980.  There is no evidence showing that the applicant appealed the approved action.

6.  Item 4 (Assignment Considerations) of the applicant’s DA Form 2-1 contains the statement, "not recommended for further service".  This is a required entry when a Soldier is barred to reenlistment or is otherwise ineligible for further service. 

7.  On 28 August 1980, the applicant voluntarily terminated his airborne duty status.  He was reassigned to Fort Knox, Kentucky, for duty as a fire support specialist.

8.  On 22 June 1981, the Chief, Military Personnel Records, Quality Assurance Section, forwarded a Disposition Form (DA Form 2496) to the applicant’s commander inquiring as to the commander’s intention with regard to the bar to reenlistment.  On 23 June 1981, the applicant’s commander replied, stating that he reviewed the bar to reenlistment and did not recommend its removal.  

9.  On 26 July 1981, the applicant was released from active duty and transferred to the United States Army Reserve Control Group (Reinforcement).  He had attained the rank of specialist four, pay grade E4, and had completed 3 years of creditable active service.

10.  Accordingly, he was given a Separation Program Designator (SPD) Code of LBK and a Reenlistment (RE) Code 3.  His character of service was honorable. 

11.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.



12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of LBK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 2, on completion of enlistment, who were ineligible for reenlistment.   Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant was barred to reenlistment due to exceeding the Army weight control standards.  The applicant was aware of this at the time and chose not to appeal the decision.

2.   Item 4 (Assignment Considerations) of the applicant’s DA Form 2-1 properly records his assignment status as being "not recommended for further service."

3.  The RE Code 3, establishing his ineligibility for enlistment/reenlistment without a waiver, was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

4.  In view of the foregoing, there is no basis for granting the applicant's request.
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_PMS___  __REB__  ___RCH _  DENY APPLICATION








BOARD DETERMINATION/RECOMMENDATION:

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.




____        Paul M. Smith__________
              CHAIRPERSON




INDEX

CASE ID
AR20070005971
SUFFIX

RECON
 
DATE BOARDED
20070828 
TYPE OF DISCHARGE

DATE OF DISCHARGE
  
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0200
2.

3.

4.

5.

6.