IN THE CASE OF:
BOARD DATE: 7 October 2008
DOCKET NUMBER: AR20080009091
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 that his Reentry (RE) code be changed to RE-1 so he can enlist.
2. The applicant states, in effect, that he is trying to enlist and he needs his RE code changed to RE-1.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service), 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted on 28 January 1999 for a period of 3 years. He successfully completed basic combat and advanced individual training in military occupational specialty 19K (M1 Armor Crewman).
3. The available records do not contain any adverse actions. However, his DD Form 214 indicates he may have been reduced to private (PV2)/E-2 on
1 January 2001.
4. On 27 January 2002, the applicant was released from active duty as a PV2/
E-2 under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.
5. Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 4. Item 26 (Separation Code) on his DD Form 214 shows the entry, "LBK." Item 27 (Reentry Code) on his DD Form 214 shows the entry, "3." Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "COMPLETION OF REQUIRED ACTIVE SERVICE.
6. The applicant enlisted in the Army National Guard on 2 May 2002 and was honorably discharged on 4 December 2004 by reason of being medically unfit for retention.
7. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code LBK is Completion of Required Active Service and the regulatory authority is Army Regulation
635-200, chapter 4. The regulation also states that separation code "LBK" is to be used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment.
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 covers eligibility criteria,
policies, and procedures for enlistment processing into the Regular Army 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.
9. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.
10. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.
11. Paragraph 3-8g(1) of Army Regulation 601-280 (Army Retention Program) states that a Soldier may not exceed the retention control points as shown in Table 3-1 by more than 29 days before expiration of contracted service (reenlistment or extension). Table 3-1 states, in pertinent part, that the retention control points for Soldiers in the ranks of private to private first class will not exceed beyond 3 years.
12. Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.
13. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated March 2001, shows that Soldiers given an SPD [Separation Program Designator] of "LBK will be given an RE code of 3.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the applicant was a PV2/E-2 with three years service at the time of his separation. Since he was not eligible for reenlistment, it appears the RE-3 was proper. Therefore, there is no basis for granting the applicants request.
2. The applicant may apply for a waiver to enlist; however, this Board will not arbitrarily substitute its judgment for that of the appropriate recruiting officials.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___XX_____ ____XX____ ___XX_____ 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.
______XXXX________________
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) AR20080009091
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