IN THE CASE OF:	  

		BOARD DATE:	       16 APRIL 2009

		DOCKET NUMBER:  AR20090003198 


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 (RE) code of RE-3 from his active duty in 1988 be changed or deleted.

2.  The applicant states that he is on active duty with the Michigan Army National Guard (MIARNG).  He states he has finished the Basic Noncommissioned Officer Course (BNCOC), Phase II and meets height and weight [standards].  He alleges that his career should not be jeopardized for something that happened in 1988.  This [RE] code is keeping him from applying for an Active Guard Reserve (AGR) job in which he is more than qualified.  He continues to state that it would be an injustice to the taxpayers to charge them to retrain someone to do a job that he is being paid to do now.  He states he is currently a sergeant and will be promoted to staff sergeant soon.

3.  The applicant provides the following documents in support of his application:  his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 June 1988; his promotion orders to sergeant, dated 19 April 2003; and his DA Form 1059 (Service School Academic Evaluation Report).

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 is currently serving in the MIARNG in the rank of sergeant.

3.  After having prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 26 February 1987.

4.  His personnel records contain a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 20 October 1987, which shows he was flagged and was entered into the Weight Control Program on 7 October 1987.

5.  The applicant was released from active duty on 7 June 1988 under the provisions of Army Regulation 635-200, paragraph 5-15 for failure to meet body fat standards.  At the time of his separation, he completed 1 year, 3 months, and 12 days of active military service.  

6.  His DD Form 214 shows he was separated with a separation code of "LFV" (Failure to Meet Body Fat Standards) and was issued an RE code of RE-3.

7.  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 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.  

8.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.



9.  Army Regulation 601-210, chapter 4, in effect at the time, contained waivable and nonwaivable enlistment criteria and prescribed procedures to initiate and process requests for waiver to meet basic enlistment qualifications.  This regulation indicated that applicants who were denied reenlistment at time of last discharge from active service under Army Regulation 601-280 had a waivable disqualification.  

10.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAGS)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  Flags will be submitted when an unfavorable action or investigation (formal or informal) is started against a Soldier by military or civilian authorities.  Paragraph 1-15 states that flags for weight control block only attendance at full-time civil or military schooling, promotion, awards and decorations, assumption of command, and reenlistment or extension.  Paragraph 1-13d states that entry into the Weight Control Program requires a transferable flag.  The flag is removed on the day the commander decides that the Soldier is in compliance with the program.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements that his career should not be jeopardized for something that happened in 1988 and that this [RE] code is keeping him from applying for an AGR job were carefully considered.  

2.  The evidence of record shows the applicant was flagged in October 1987 and placed in the Weight Control Program.  It appears he was not in compliance with the program so his commander decided to initiate separation action.  

3.  The applicant was released from active duty on 7 June 1988 under the provisions of Army Regulation 635-200, paragraph 5-15 for failure to meet body fat standards and was assigned an RE-3 in accordance with regulations in effect at the time.  By regulation, the applicant was not qualified for continued service, but the disqualification of RE-3 code is waivable under Army enlistment criteria.  It is, however, acknowledged that criteria for entry into the AGR program may be more strict.  Nevertheless, that is insufficient justification for changing a properly-awarded RE code.

4.  The applicant states he now meets height and weight [standards] and has completed BNCOC, Phase II.  His accomplishments are commendable; however, these facts are not sufficient to warrant the relief requested.



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)                                         AR20090003198





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ABCMR Record of Proceedings (cont)                                         AR20090003198



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