IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080015295 


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 the reentry eligibility (RE) code currently reflected on his Certificate of Release or Discharge from Active Duty (DD Form 214) be changed from RE-3.

2.  The applicant states that an RE-3 code states that individuals are not qualified for continued Army Service; however, he was allowed to enlist in the United States Army Reserve (USAR) immediately upon his discharge.  He questions why he was eligible to enlist in the Reserve component if he was not qualified to reenlist in the Active component.  He states that he believes that the RE-3 code reflected on his DD Form 214 is erroneous and it should be changed.  He further states that he needs to provide for his family and the Active component can accommodate that need.

3.  The applicant provides a copy of his 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 available records show that on 23 August 1978, the applicant enlisted in the Regular Army (RA) in Spokane, Washington, for 4 years, in the pay grade of E-1.  The facts and circumstances surrounding this period of enlistment and discharge are not on file and there is no DD Form 214 in the available records that reflect this period of service.

3.  The applicant's records show that on 21 January 1987, he enlisted in the RA in Denver, Colorado, for 3 years, in the pay grade of E-2.  He remained on active duty through a series of reenlistments until his discharge on 27 November 1997.

4.  Department of the Army, Camp Casey Transition Center (Korea) Orders
180-011, dated 29 June 1997, discharged the applicant effective 27 November 1997.  The orders show that payment of full separation pay was contingent upon his entering into a written agreement to serve in the Ready Reserve for a period of not less than 3 years.  The applicant entered into an agreement to serve in a Reserve unit in Korea prior to his discharge.

5.  After completing 10 years, 10 months, and 7 days of net active service this period, the applicant was honorably discharged on 27 November 1997, under the provisions of Army Regulation 635-200, chapter 4, upon completion of his required active service.  He was transferred to a Reserve unit in Korea upon his discharge from the RA.

6.  The DD Form 214 that the applicant was furnished at the time of his discharge shows that he received separation pay in the amount of $30,817.14; that he was furnished a "JBK" (Completion of Required Active Service) separation code; and that he was furnished an RE code of "3."

7.  The applicant was furnished his Notice of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 26 February 2004.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific reasons for separating Soldiers from active duty and the separation codes to be entered on DD Form 214.  It provides that SPD code "JBK" will be entered in block 26 of the DD Form 214 when the Soldier is involuntarily discharged with a narrative reason for separation of completion of 
required active service.  It also notes that this SPD is to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment and who are separated on completion of their enlistment.

9.  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 and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes the basic eligibility criteria for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  The SPD Cross Reference Table provides that for an individual's involuntary discharge when the Narrative Reason for Separation is completion of required active service, an RE-3 code will be assigned.

10.  An RE code of 3 applies to persons not qualified for continued Army Service, but the disqualification is waivable.  A waiting period of 2 years from date of separation is required before a waiver may be submitted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated and assigned an RE code in accordance with the applicable regulation.  

2.  The narrative reason for separation currently reflected on his DD Form 214 properly shows that he was discharged upon completion of his required active service with an SPD code of "JBK."  Therefore, he was properly assigned an RE code of 3.

3.  The applicant's contentions have been noted.  However, his records show that he was furnished separation pay in the amount of $30,817.14 at the time of his discharge from active duty and that his discharge orders show that payment of full separation pay was contingent upon his entering into a written agreement to serve in the Ready Reserve for a period of not less than 3 years.  Inasmuch as he entered into an agreement to serve in the USAR prior to his discharge, he was allowed to enter into the Ready Reserve after his release from active duty without obtaining a waiver.

4.  As previously stated, an RE code of 3 applies to persons not qualified for continued Army Service, but the disqualification is waivable.  A waiting period of 2 years from separation is required before a waiver may be submitted.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  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

___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.



      _______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)                                         AR20080015295



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015295



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1