IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006945 


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 Item 10 (Reenlistment Code (RE)) on DD Form 214 (Report of Separation from Active Duty) be changed. 

2.  The applicant states, in effect, that he received an honorable discharge; however, he was assigned an RE code of RE-3B.  He contends that he attempted to enlist in June 1976 and was denied enlistment.  Because his RE code was wrong, he was denied an opportunity for a military career. 

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

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 13 April 1973, the applicant enlisted in the Regular Army for a period of 
3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 75B (Unit Clerk).  He attained the grade of specialist four/E-4.  

3.  On 27 August 1976, he was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  His DD Form 214 shows that his service was characterized as honorable and he was assigned a Separation Program Designator (SPD) Code of "LBK" and an RE code of RE-3B. On 12 April 1979, he was honorably discharged from the USAR upon completion of his statutory military obligation.

4.  A review of the applicant's military record shows that on 2 October 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) for 
15 days.  His punishment consisted of a reduction to private/E-1 and a forfeiture of $71.00 pay.  His record also shows that his pass privileges were revoked for 14 days for unbecoming behavior on 7 November 1974.  Unknown civilian charges were dropped against him after he settled with the complainant.  A report from the Federal Bureau of Investigation (FBI) shows that he was arrested on 23 September 1973 (while AWOL) for burglary of an automobile, and on
28 June 1974 for larceny of an automobile. 

5.  The applicant's DA Form 2-1 contains the following annotation:  "Not eligible for reenlistment RE-3B."

6.  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 RA and the U.S. 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 RA RE codes.  RE 1 and 2 permit immediate reenlistment if all other criteria are met. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3B applies to Soldiers with disqualifications for retention, including AWOL in excess of 5 days during current term of service.   

7.  Army Regulation 635-5-1 (SPD Codes), then in effect, provided 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.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) established RE Codes to be assigned for each SPD.  

8.  A separation code of "LBK" was used for Regular Army Soldiers eligible to reenlist who were released from active duty on completion of enlistment and transferred to the Reserve Component to complete a military service obligation.  The SPD/RE Code Cross Reference Table shows that RE codes RE-1 and RE-3 were the applicable RE codes assigned for individually voluntarily REFRAD at the completion of enlistment and transferred to the Reserve Component to complete military service obligation.  

9.  An RE code of RE-3 was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment; had signed a Declination of Continued Service Statement (DCSS); had met his or her retention control point (established in Army Regulation 608-280); or confinement; or had an Immediate Reenlistment Prohibition Code.  An RE code of RE-3B was entered for Soldiers who had lost time during their last period of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 13 April 1973 through 27 April 1976.  He had 15 days of lost time due to AWOL.  Although the applicant was released from active duty and transferred to the USAR Control Group, his official record shows he was denied immediate reenlistment and assigned an RE code of RE-3B.  

2.  Regulatory guidance in effect at the time of the applicant's discharge shows that an RE-3B was the proper RE code to assign him because he had lost time due to AWOL.

3.  The applicant provided no evidence in support of his contention that he was denied reenlistment in June 1976 due to his RE code.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
	_______________________
      	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)                                         AR20080006945



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006945



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1