IN THE CASE OF:	

		BOARD DATE:	7 July 2009  

		DOCKET NUMBER:  AR20090001900 


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 eligibility (RE) code of "3" be changed to "1."

2.  The applicant states that he has no idea of any reason why his RE code would be a "3."  He states he was never demoted or in any trouble.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation effective date of 5 November 2005.

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 record shows that he enlisted in the Regular Army on 6 November 2001 for a 4-year period of service.  He completed basic combat and advanced individual training.  He was awarded military occupational specialty 25Q (Multichannel Transmission Systems Operator and Maintainer).

3.  The applicant was honorably released from active duty under the provisions of Army Regulation 635-200 (Enlisted Separations) on 5 November 2005 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The DD Form 214 he was issued shows that he served 4 years of active duty.  Item 23 (Type of Separation) shows that he was released from active duty.  Item 24 (Character of Service) shows the entry "MBK" and item 27 (Reentry Code) shows the entry "3."

4.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows he was awarded the Army Achievement Medal and the Army Good Conduct Medal.

5.  The applicant's Enlisted Record Brief, dated 24 April 2005, shows the flag code "JA."  This flag code means he was flagged for an Army Physical Fitness Test (APFT) failure.  There is no record that the flag was lifted prior to the applicant's release from active duty.  There are no records of court-martial or punishments under Article 15 of the Uniform Code of Military Justice in the applicant's official military personnel file on the integrated Personnel Electronic Records Management System (iPERMS) that would necessitate a flag for misconduct.

6.  Army Regulation 350-1 (Army Training and Leader Development) provides the guidance for physical fitness training to enhance combat readiness by developing and sustaining a high level of fitness in Soldiers.  In pertinent part, Soldiers must meet the physical fitness standards as measured during the AFPT and those who are unable to meet these standards may be subject to administrative action.

7.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) provides, in pertinent part, for the flagging of Soldiers' military personnel records jackets (MPRJ).  Commanders will operate a system to guard against the accidental execution of specified favorable personnel actions for Soldiers not in good standing.  A flag will be initiated immediately when a Soldier’s status changes from favorable to unfavorable.  A flag is initiated for failure to pass the APFT or failure to take the APFT within the required period.  The flag is removed on the day the Soldier passes the APFT, at the expiration term of service, at expiration of service agreement, or at a mandatory release date.  A flag properly imposed prohibits the appointment, reappointment, reenlistment, and extension of a Soldier.  Table 3-1 (Codes for the Reason Date of the Flag Transaction) shows that code "J" is for APFT failure and code "A" is for an initial report.

8.  Army Regulation 635-200 states, 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.

9.  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 USAR.  The RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, the RE codes are used for identification of an enlistment processing procedure.  Table 3-1 included a list of the RA RE codes:

	a.  RE "1" applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

10.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides, in pertinent part, that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states, in pertinent part, that the SPD code "MBK" is the appropriate code to assign to RA Soldiers who have completed their required active service and are released from active duty enlistment and transferred to the USAR Control Group (Reinforcement) to complete their mandatory military service obligation.  The SPD code "MBK" is appropriately used for Soldiers who are separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active service.

11.  Separation Program Designator (SPD)/RE Codes Cross Reference Table provides instructions for determine the RE code for Active Army Soldiers when they are separated.  An RE code 3 applies when a Soldier's record (for the current enlistment period) indicates that he or she is ineligible for or otherwise denied immediate reenlistment, has signed a Declination of Continued Service Statement, has lost time due to being absent without authority or confinement, has an Immediate Reenlistment Prohibition Code of "9T."  The table shows that for the SPD code "MBK" the RE code is either 1 or 3.  RE code 3 will be used when the Soldier is ineligible for immediate reenlistment.

12.  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 contends that his RE code should be "1" not "3" as currently shown on his DD Form 214 with a separation effective date of 5 November 2005.

2.  The only derogatory information found in the applicant's service records shows that the applicant did not pass the APFT on 29 November 2004.  His APFT failure was properly recorded in iPERMS and his MPRJ was appropriately flagged.  Therefore, he was not eligible for an immediate reenlistment upon his expiration of his term of service.

3.  When the Soldier was released from active duty, his corresponding separation code was "MBK" and per regulatory guidance the flag was removed.  While the Soldier stated he does not know the reason for his RE code "3," the evidence of record shows that he did not successfully pass the APFT which required his unit commander to flag his MPRJ making him ineligible for an extension or reenlistment.

4.  Therefore, the applicant was not fully qualified for reentry or continuous service at the time of separation and the appropriate RE code "3" was entered on his DD Form 214.

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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's RE code to "1."







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)                                         AR20090001900



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ABCMR Record of Proceedings (cont)                                         AR20090001900



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