IN THE CASE OF:	  

		BOARD DATE:	  	   21 January 2009

		DOCKET NUMBER:   AR20080017692


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, change of his separation and reentry eligibility (RE) codes so he may reenter the Army.

2.  The applicant states, in effect, he recently tried to reenter military service and was told that his RE code was a factor.  He also states he was not told that his Separation and RE codes would be factors that would preclude him from reentering military service.  He further states that he served honorably in two prior enlistments from October 1999 to September 2004, including a year overseas in support of Operation Iraqi Freedom, is physically fit, and ready to serve his country with honor.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 1 September 2004 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 applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 2 September 1999 and entered the Delayed Entry Program.  He then enlisted in the Regular Army (RA) and entered active duty for a period of 3 years on 13 October 1999.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 19D (Cavalry Scout).

3.  On 21 March 2000, the applicant was assigned overseas to U.S. Army Europe in Germany.  On 24 October 2001, he reenlisted in the RA for a period of 3 years and departed Germany on 20 March 2002.  The applicant served in Kuwait and Iraq in support of Operation Iraqi Freedom from 1 April 2003 to 1 April 2004.  Records show he extended his 3-year reenlistment a period of 7 months and established his expiration term of service (ETS) as 23 May 2005.

4.  The applicant's military personnel records contain a DA Form 4991-R (Declination of Continued Service Statement), dated 7 June 2004.  This document shows that the applicant had an ETS of 23 May 2005 and incurred a service-remaining requirement of 24 months remaining to ETS (as of 20 July 2004) as a result of assignment instructions for Fort Knox, Kentucky.  This document also shows that the applicant was counseled by an Army Career Counselor as to the options available to acquire sufficient remaining service to satisfy the commitment, but refused to take necessary action to meet the length of service requirement.  This document further shows that the applicant acknowledged with his signature that he was counseled by the Army Career Counselor and, in pertinent part, he understood the effects his refusal would have on his Army career and on any future decision he might make concerning reenlistment or enlistment after separation.

5.  The applicant’s military personnel records are absent a copy of his administrative separation packet.

6.  The applicant's military personnel records contain his DD Form 214 that shows the applicant entered active duty this period on 13 October 1999 and was honorably discharged on 1 September 2004.  Item 18 (Remarks), in pertinent part, contains the entry "Immediate Reenlistments This Period – 20011024 - 20041023."  At the time of his discharge, the applicant had completed 4 years, 10 months, and 19 days of net active service.  This document also shows, in pertinent part, that the separation authority was Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-5c, and the reason for his separation was non-retention on active duty.  Based on the authority and reason for his separation, the applicant was assigned a separation program designator (SPD) code of "KGH" and an RE code of "3."

7.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 16 (Selected Changes in Service Agreements), in pertinent part, governs non-retention on active duty and provides that Soldiers denied or ineligible for continued active duty service may be separated, upon request.  This document states that RA Soldiers serving on a second or subsequent enlistment who refuse to take action to meet military service remaining requirements by signing a DA Form 4991-R pursuant to Army Regulation 601-280 (Army Retention Program) may request voluntary separation.

8.  Army Regulation 635-5-1 (SPD Codes) provides 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.  It identifies the SPD code of "KGH" as the appropriate code to assign RA enlisted Soldiers separated based on "non-retention on active duty."  The SPD/RE Code Cross Reference Table establishes "RE-3" as the proper RE code to assign to Soldiers separated with an SPD code of "KGH."

9.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

10.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the U.S. Armed Forces are categorized as prior service (PS) personnel.  The applicant's military records show that he qualifies as PS.)

11.  Army Regulation 601-210 also prescribes eligibility criteria governing the enlistment of persons, with or without PS, into the RA and the USAR.  Paragraph 3-20 (Verification of PS) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

12.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority.  Commanders cited in this regulation have the authority to approve waivers, as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that his or her acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the USAR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate electronic mail address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

13.  The governing Army regulation further provides that PS Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, USA HRC, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."

14.  There is no evidence in the applicant's military service records that shows he applied for a waiver of his RE Code to reenter the U.S. Army and/or that his request was denied.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for change to the SPD and RE codes he received in conjunction with his discharge from the Army was carefully considered.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record shows the SPD code that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the assigned SPD code of "KGH" was and remains valid.  Therefore, there is no basis to change the applicant’s SPD code.

4.  The evidence of record shows the RE code that the applicant received was appropriately assigned based on the authority and reason for his discharge.  Thus, the assigned RE code of "RE-3" was and remains valid.  Therefore, there is no basis to change the applicant’s RE code.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  The evidence of record indicates that the reason the applicant may be requesting change to his RE code is in order to reenter the U.S. Army.  In this regard, the evidence of record shows that individuals, including PS personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.

7.  Accordingly, the applicant is advised that, although no change is being recommended to his RE code, this does not mean that he is disqualified from enlistment in the U.S. Army, as the RE-3 code he was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, he should contact a local recruiter to determine his eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a prior service member as to the needs of the Service and are required to process waivers of RE codes.

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.



      ____________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)                                         AR20080013714



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017692



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1