IN THE CASE OF:	  

	BOARD DATE:	  24 JUNE 2008

	DOCKET NUMBER:  AR20080005159 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his reentry (RE) code of RE-4 be change to a RE code that would allow him to enlist in the Army National Guard.

2.  The applicant states, in effect, that while on active duty he achieved the rank of sergeant (SGT), but was reduced to specialist (SP4) due to a company grade Article 15 for an altercation.  He states there was not enough time remaining for him to get promoted to SGT before his scheduled end of service date, which may have been the cause for him being barred from reenlistment.  He received an honorable discharge from the service.

3.  The applicant provides a copy of his separation document (DD Form  
214); separation orders; DD Form 4/1 (Enlistment/Reenlistment Document-Armed Forces of the United States); DA Form 2-1 (Personnel Qualification Record, Part II), Headquarters, 78th Engineer Battalion (C) Permanent Orders Number 4-3, dated 24 April 1986; five Certificates of Achievement, Certificate of Training; and a Diploma from the United States Army Fifth Infantry Division, Noncommissioned Officers Academy.

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 military personnel record shows he enlisted in the Regular Army on 7 August 1980.  He completed the necessary training and was awarded the military occupational specialty (MOS) 12B (Combat Engineer).

3.  He served continuously on active duty in various assignments until he achieved the rank of SGT.  

4.  His Official Military Personnel File (OMPF) does not contain any record of a bar to reenlistment or a nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  However, a DD Form  
2329 (Record of Trial by Summary Court-Marital) shows he was reduced to  
E4, effective 22 September 1988.

5.  He was honorably discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separation) by reason of expiration term of service in the rank of SP4 on 3 August 1989.  

6.  The DD Form 214 he was issued at the time shows he had completed  
8 years, 11 months, and 27 days of Net Active Service This Period.  This document also shows that based on the authority and reason for his separation, he was assigned a Separation Program Designator (SPD) code of JBK and a RE code of RE-4.

7.  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 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.

8.  Table 3-1 (U.S. Army reentry eligibility codes) of Army Regulation  
601-210 states that RE-1 applies to persons who are considered qualified for reentry or continuous service at time of separation.  The code RE-4 applies to persons separated from last period of service with a nonwaivable disqualification.

9.  Table 3-1 of the same regulation states that RE-3 code applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

10.  AR 635-5-1 (Separation Program Designated Codes), states at the time that the SPD code JBK denotes involuntary discharge, expiration term of service.

11.  The Army Human Resources Command publishes a cross-reference of SPD and RE codes.  This cross-reference shows that an SPD code of JBK is assigned an RE code of RE-3.

12.  There is no indication in the record that the applicant applied to the Army Discharge Review Board to request a change in the narrative reason for his discharge within the 15-year statue of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-4 be change to a RE code that would allow him to enlist in the Army National Guard.

2.  The evidence of record shows that the applicant was honorably discharged under the provisions of Army Regulation 635-200 by reason of expiration term of service in the rank of SP4.  His separation processing was accomplished in accordance with the applicable regulations.  However, the RE code of RE-4 was inappropriately assigned for the applicant's SPD of JBK. 

3.  In accordance with Army Regulation 635-5-1 in effect at that time, the SPD code of JBK is the proper SPD code to assign to members separating under the provisions of Army Regulation 635-200, chapter 4 for expiration term of service.  Also, the Army Human Resources Command cross-reference shows that an SPD code of JBK is assigned an RE code of RE-3.  It is reasonable to conclude that the applicant received an RE code of RE-4 in error.  Therefore, the applicant is entitled to correction of his records to show an RE code of RE-3.

BOARD VOTE:

___X____  ___X____  ___X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his RE-4 code to RE-3.




       _    __X_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005159



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ABCMR Record of Proceedings (cont)                                         AR20080005159



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