IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001251 


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 from RE-3 to RE-1A.   

2.  The applicant states, in effect, that his RE code of RE-3 was based on him being a non-citizen and that it should be changed to RE-1A based on the fact he has now obtained United States citizenship and wishes to continue his military service.  

3.  The applicant provides a certificate of naturalization and a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows that he enlisted in the Regular Army and entered active duty on 20 September 1995, and that he was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).   

3.  The applicant's record shows that he was selected for reassignment to Fort Huachuca, Arizona, on 9 September 2001, which required him to have a minimum of 13 months remaining to his expiration term of service (ETS) date.  

4.  On 19 September 2001, after being advised of the options available to him to acquire sufficient remaining service to satisfy the commitment based on his reassignment, the applicant refused to take the necessary action to meet the length of service requirement.  He was then advised that his failure to comply with the commitment would prohibit him from reenlistment or extension of enlistment.  He was informed that he could be eligible to join the Reserve Component.  

5.  Subsequent to counseling, the applicant completed a Declination of Continued Service Statement (DCSS) and confirmed he had been counseled on the effects his refusal would have on his Army career and on any future decision he might make concerning reenlistment or enlistment after separation.  The applicant authenticated the DCSS with his signature in Section B (Soldier's Acknowledgment of Counseling).  

6.  On 25 February 2002, the applicant completed an in-service enlistment contract for the Army National Guard (ARNG).  

7.  On 22 June 2002, the applicant was honorably released from active duty, in the rank of sergeant, under the provisions of chapter 4, Army Regulation
635-200, by reason of completion of required service.  The DD Form 214 he was issued shows he completed a total of 6 years, 9 months, and 3 days of active military service, and that he was assigned a Separation Program Designator (SPD) code of MBK and an RE code of RE-3.    

8.  The applicant served in the ARNG from 23 June 2002 through 22 June 2004, at which time he was honorably discharged, by reason of expiration of service obligation after completing a total of 9 years of military service.  The NGB Form 22 (Report of Separation and Record of Service) he was issued at the time shows he was assigned a RE code of RE-1.  


9.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.   

10.  Table 2-3 of the SPD code regulation identifies the SPD codes applicable to enlisted personnel and lists the SPD code of MBK as being applicable to members separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required service and indicates note 6 is applicable.  Note 6 states, in pertinent part, that the SPD code of MBK is applicable to members with a DCSS in force who are REFRAD and transferred to the Reserve Component.  The Department of the Army SPD/RE Cross Reference Table indicates that Soldiers separated under the provisions of chapter 4, Army Regulation 635-200 who receive the SPD code of MBK will receive an RE code of RE-3 or RE-1.  It further stipulates, in pertinent part, that when a Soldier's record indicates he has a DCSS in force RE-1 will be disregarded and the RE-3 code will be assigned. 

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  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-4 applies to persons who have a nonwaivable disqualification.  RE-3 applies to persons who have a waivable disqualification.  

12.  Paragraph 3-23 of the above regulation provides guidance on determining enlistment/assignment eligibility and states that RA enlistment eligibility will be based on the last discharge or separation.  If the last period of service was in a Reserve Component (RC) qualification will be based on that separation/ discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE code of RE-3 he was assigned upon his REFRAD should be changed to an RE-1A was carefully considered.  However, by regulation, an RE-3 is the proper code to assign members separated at the completion of their required active service when a DCSS is in force.  

2.  The evidence of record confirms the applicant refused to take action to acquire the remaining service necessary to meet the length of service requirement for reassignment and he signed a DCSS on 19 September 2001.  The DCSS remained in force at the time of his 22 June 2002 REFRAD.  Therefore, absent any evidence of an error or injustice related to the assigned RE code, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  By regulation, RA enlistment eligibility will be based on the last discharge or separation.  If the last period of service was performed in a RC, qualification will be based on that separation/discharge.  

4.  The evidence of record confirms the applicant served in the ARNG from 
23 June 2002 through 22 June 2004, at which time he was honorably discharged by reason of completion of required service and assigned an RE code of RE-1.  As a result, it appears he is eligible to reenlist in the RA based on that last RE code.  Therefore, a change of the RE-3 code he was assigned upon his REFRAD is not necessary for him to enlist in the RA at this time.  

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)                                         AR20090001251



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ABCMR Record of Proceedings (cont)                                         AR20090001251



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