RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070013055 


	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. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 Eligibility Code (RE Code) from RE-3G [sic] to RE-1.

2.  The applicant states that upon his discharge in 1993, he authenticated the “Member” copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that showed his RE code as RE-1.  He recently requested a copy of his DD form 214 through the Human Resources Command, St. Louis, Missouri, and was surprised to see the “Service” copy of his DD Form 214, not authenticated by him and showing RE code 3G.  He further adds that he had no reason, then or now, to request a waiver to reenlist in the Army.  He wants the “Service” copy of his DD Form 214 to read RE-1.  

3.  The applicant provided copies of the “Member” and the “Service” DD Forms 214, dated 22 February 1993, in support of his application. 

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.  The applicant’s record shows that he enlisted in the U.S. Army Reserve on 31 December 1986.  However, his enlistment contract is not available for review with this case.  He completed basic combat and advanced individual training and was awarded primary military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).  

3.  The applicant's record further shows that he enlisted in the Regular Army on 23 February 1989 for a period of 4 years in the rank of private (PV2)/E-2.  The highest rank he attained during his military service was specialist four (SP4)/E-4. 

4.  Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, Kentucky, Orders 266-219, dated 22 September 1992; shows that the applicant was reassigned to the U.S. Army Transition Point for transition processing, effective 22 February 1993.  The additional instructions on the separation orders show the applicant was assigned a Separation Program Designator (SPD) code of "LBK."  This SPD code is used for involuntary release from active duty or transfer upon completion of required active service when the Regular Army Soldier is ineligible for, barred from, or otherwise denied reenlistment

5.  The applicant was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 22 February 1993 in accordance with chapter 4 of Army Regulation 635-200 (Personnel Separation) by reason of expiration of term of service.  The “Service” DD Form 214 he was issued at the time of separation shows he was given an SPD code of "LBK" and a Reentry code of “RE-3C.”  Item 6 (Reserve Obligation Termination Date) shows the entry “94 12 30.”

6.  The applicant’s service records are not available for review with this case. However, the applicant provided a copy of his “Member” DD Form 214 that shows he was given an SPD code of "LBK" and an RE code of “RE-1.” 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  In the version in effect at the time, chapter 4 established policy and prescribed procedures for the separation of enlisted personnel upon expiration of enlistment or fulfillment of service obligations.

8.  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.  In the version in effect at the time, Paragraph 3-10 stated that individuals with prior service were eligible for enlistment if they qualified under the criteria listed in this paragraph.  Chapter 3 included a list of Armed Forces RE codes, including Regular Army RE codes.

	a.  RE–1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated;

	b.  RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable; and
	c.  RE–3C applied to persons who did not meet the reentry grade and service criteria of Army Regulation 601-210; ineligible for enlistment unless a waiver was granted. 

9.  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.  In the version of this regulation in effect at the time, SPD code LBK was used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment, who were separated on completion of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his records be corrected by changing his reentry code (RE Code) from RE-3C to RE-1.

2.  It appears that upon his separation from the Army for completion of his enlistment, the applicant was ineligible for, barred from, or otherwise denied reenlistment.  As a result, he was given an SPD code of "LBK" and his separation is considered an involuntary release from active duty.  Since he was disqualified from reentering the Army, he was therefore appropriately given an RE code of 3C indicating he had a waivable disqualification.

3.  It is unclear why the "Member" copy of his DD Form 214 reflects an RE-1.  However, the presumption of administrative regularity that is, what the Army did was correct, prevails in this case.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

4.  Since enlistment criteria does change, and since an individual has the right to apply for a waiver, the applicant should periodically visit his local recruiting station to determine if he should apply for a waiver.

5.  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

__dkh___  __jrh___  __eem___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



						David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.