IN THE CASE OF:	   

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080015397 


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 be changed to RE-1 so he can enlist.

2.  The applicant states that he would like his RE code changed to reflect his overall service, awards, contract fulfillment, character of service, separation code, and current service accomplishments.  He contends that he received two awards of the Army Commendation Medal, two awards of the Army Achievement Medal, six awards of the Good Conduct Medal, and that he has current letters of recommendation.  He states that he continued to serve in the Army on active duty without restriction for a full year after being released from incarceration, that he completed his original enlistment contract, and that he served on active duty without restriction for an additional 46 days to make up his lost time.  He goes on to state that after fulfilling his enlistment contract he declined reenlistment and was honorably discharged.  He points out that he has remarried and has three children, that he has not been in any trouble since he started his new life, that he is currently serving in the Army National Guard, and that he would like to return to active duty in the Army.    
 
3.  The applicant provides his Army National Guard enlistment contract; orders for the Missouri National Guard Commendation Ribbon (1st Award), a memorandum, dated 28 June 2008, from a recruiter; a letter of commendation; orders for the Good Conduct Medal; discharge orders, dated 3 April 1995; a letter, dated 28 August 2008, from his wife; a letter, dated 24 July 2008, from a Member of Congress; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  
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 was born on 23 March 1973.  He enlisted in the Regular Army on 18 June 1992 and was trained in military occupational specialty 63S (heavy wheeled vehicle mechanic).  He attained the rank of private first class.

3.  On 14 June 1994, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of assault upon a child under the age of 16 years.  He was sentenced to be reduced to E-1 and confinement for 
2 months.  On 17 August 1994, the convening authority approved the sentence.

4.  On 4 August 1995, the applicant was released from active duty as a PV1/E-1 under the provisions of Army Regulation 635-200, chapter 4, by reason of completion of required active service.  He had completed 3 years of creditable active service with 46 days of lost time    

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's DD Form 214 shows he was awarded two awards of the Army Commendation Medal, two awards of the Army Achievement Medal, and six awards of the Good Conduct Medal.  His DD Form 214 also shows he completed 7 courses, including the 54B Advanced Noncommissioned Officer course, in the 1980s.   

7.  The applicant provided orders, dated 24 March 1995, showing he was awarded the Army Good Conduct Medal for the period 18 June 1991 to 17 June 1995.  

8.  The applicant enlisted in the Army National Guard on 18 May 2007.

9.  The applicant provided a memorandum, dated 28 June 2008, from a recruiter in Columbia, Missouri.  He attests that the applicant’s request for enlistment in the Regular Army was denied due to 46 days that he spent confined during his enlistment and that the Plans and Policies Division of U.S. Army Recruiting Command has termed this 46 days as desertion.  

10.  The applicant also provided a letter of recommendation, dated 16 July 2008, from his Maintenance Control Noncommissioned Officer. 

11.  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.

12.  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.

13.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

14.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

15.  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.  

16.  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. 

17.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 20 September 1993, shows that Soldiers given an SPD [Separation Program Designator] of "LBK” will be given an RE code of 3.  

18.  Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  It provides that the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is normally 3 years of enlisted active Federal military service completed on or after 27 August 1940 and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  Conviction by courts-martial terminates a period of qualifying service; a new period begins the following day after completion of the sentence imposed by the court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was a PV1/E-1 with three years service at the time of his separation.  Since he was not eligible for reenlistment, it appears the RE-3 was proper.  

2.  In addition, the DD Form 214 the applicant provided appears to have numerous inconsistencies with his record of service.  

3.  The applicant completed 3 years of creditable active service during the period covered by the DD Form 214.  A Soldier would need to have completed 18 years of active Federal service to have been awarded six awards of the Good Conduct Medal.  In addition, because the applicant had been convicted by court-martial on 17 August 1994, he would not have been eligible for the one Army Good Conduct Medal for which he provided orders.  

4.  Also, since the applicant did not enlist until 18 June 1992, he could not have completed any of the military education shown on his DD Form 214. 

5.  Therefore, 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)                                         AR20080015397





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ABCMR Record of Proceedings (cont)                                         AR20080015397



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