RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20070019039 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 reentry (RE) code of RE-3 be upgraded.   

2.  The applicant states, in effect, that he is currently serving in the New York Army National Guard (NYARNG) and trying to enter active duty in the Active Guard Reserve (AGR) program.  He states that he was discharged under reduction in strength provisions and was never informed he could not reenter the military on a full time basis.  He claims he has been informed that the only RE-3 code allowed entry into the AGR program is those members who were separated from active duty for hardship, and in order to enter the AGR program, he would need to have an RE-1 or RE-2 code.  

3.  The applicant provides a copy of his separation document (DD Form 214) 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 Regular Army and entered active duty on 11 September 1984.  He was trained in, awarded, and served in military occupational specialty (MOS) 75F (Personnel Information System Management Specialist), and specialist (SPC) is the highest rank he attained while serving on active duty.  


3.  The applicant's record shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal; Army Commendation Medal (2nd Award); Army Achievement Medal (2nd Award); Army Good Conduct Medal (2nd Award); Army Service Ribbon; Noncommissioned Officer Professional Development Ribbon; Overseas Service Ribbon; Expert Marksmanship Qualification Badge with Rifle Bar; and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  On 18 February 1992, the applicant was honorably discharged, in the rank of SPC, after completing a total of 7 years, 5 months, and 8 days of active military service.  The DD Form 214 he was issued at the time shows, in Item 25 (Separation Authority), that he was separated under the provisions of Paragraph 16-8, Army Regulation 635-200.  Item 26 (Separation Code) shows he was assigned a Separation Program Designator (SPD) code of JCC and Item 27 shows he was assigned an RE code of RE-3.  Item 28 (Narrative Reason for Separation) lists the reason for his separation as "FY92 Enlisted Volunteer Early Transition Program," and Item 18 (Remarks) shows he received a Special Benefit payment of $16,243.57.  The applicant authenticated the separation document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

5.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (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.  RE-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

6.  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.  It states, in pertinent part, that the SPD code JCC is the appropriate code to assign to RA Soldiers who were discharged under the provisions of Paragraph 16-8, Army Regulation 635-200, by reason of reduction in force.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 is the proper code to assign to members separated under these provisions.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE-3 code needs to be changed because he was not informed it would prevent him from full time service permanently was carefully considered.  However, there is insufficient evidence to support his claim. 

2.  By regulation, RE-3 is the proper code to assign to members who are assigned an SPD code of JCC who were discharged by reason of reduction in force.  The evidence of record contains a properly constituted DD Form 214 that shows the applicant was discharged under the provisions of Paragraph 16-8, Army Regulation 635-200, by reason of "FY92 Enlisted Volunteer Early Transition Program", and that he was assigned an SPD code of JCC and an 
RE code of 3 accordingly.  This separation document carries with it a presumption of Government regularity.  

3.  The record confirms the applicant authenticated the DD Form 214 with his signature on the date of his discharge.  In effect, his signature was his verification that the information contained on the separation document, to include the 
RE code entry, was correct at the time the separation document was prepared and issued.  Therefore, absent evidence to the contrary, it is presumed the 
RE-3 code assigned was and remains valid.  As a result, there is an insufficient evidentiary basis to support a change to the RE code.  

4.  The applicant is advised that although no change to his RE code is being recommended, the RE-3 code he was assigned does not permanently disqualify him from further full time service as he indicates.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however, a waiver of the disqualification is allowed.  Therefore, if he desires to enlist, he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes.  

5.  The information the applicant provides regarding his entry into the AGR program is a matter of policy and is governed by the officials responsible for the program.  The applicant is advised to discuss this policy with the responsible officials and determine if he can submit a request for an exception to policy and/or waiver of his RE-3 code in order to enter the AGR program.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x  ___  ___x ____  ___x____  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.




      _________x_____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070019039



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508