IN THE CASE OF:	 

		BOARD DATE:	  28 July 2009

		DOCKET NUMBER:  AR20090004035 


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 reenlistment (RE) code of RE-3B be upgraded.

2.  The applicant states, in effect, that under current standards, he would have been given a higher RE code.  He also states that he had a troublesome family emergency and forgot to call his company commander resulting in a 2-day absent with leave (AWOL) violation.  He requests that he be sent a copy of his entire Army record if relief is not granted.  

3.  The applicant his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 records show he was inducted into the Army of the United States and entered active duty on 25 May 1966, and was awarded and served in military occupational specialty (MOS) 94B (Cook).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in item 33 (Appointments and Reductions), that he was advanced to specialist four (SP4)/
E-4 on 27 February 1967, and that this is the highest rank he attained while serving on active duty.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code) shows he was AWOL for 2 days between 2 and 3 October 1966.  

4.  On 11 March 1968, the applicant was honorably released from active duty (REFRAD), in the rank of SP4 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.  The DD Form 214 he was issued at the time shows he completed a total of 1 year,
9 months, and 15 days of creditable active military service and that he accrued
2 days of time lost due to AWOL.  It also confirms that he was separated under the provisions of Section VII, chapter 5, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of "overseas returnee" and received a separation program number (SPN) of 411.  Item 15 (Reenlistment Code) shows he was assigned an RE code of 3B and item 30 (Remarks) shows he accrued 2 days of time lost during the period 2 through 3 October 1966.

5.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the 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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3B, in effect at the time, indicated that a person had lost time during his last enlistment.  

6.  Paragraph 4-14 of the current version of Army Regulation 601-210 states, in effect, that any applicant who was AWOL during their last period of service must have a waiver to enlist/reenlist regardless of the type of service or RE code assigned at separation.  The Recruiting Battalion commander is the approval authority for this waiver.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Section VII, Paragraph 5-14 (Oversea returnees), in effect at the time, established the policy for separating members to preclude nonproductive reassignments for short periods of time.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the RE code assigned to him at the time of his discharge should be changed in accordance with the current standards has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was AWOL for 2 days during his last period of active duty service, as evidenced by entries on his DA Form 20 and DD Form 214, and that he was properly assigned an RE-3B code based on the regulatory policy in effect at the time.  Further, under current regulatory standards, individuals who were AWOL during their last period of service, regardless of the RE code assigned, require a waiver from the recruiting battalion commander to enlist/reenlist.  As a result, given the applicant was properly assigned an RE-3B code at the time of his separation, and a waiver is required for him to enlist under current regulatory standards, the RE code he was assigned was and remains valid.

3.  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.

4.  The applicant is advised that although his RE code has not been upgraded, this does not mean that he is disqualified from enlistment.  While RE-3B does apply to persons who are not considered fully qualified for reentry or continuous service, there are provisions that provide for a waiver of the disqualification.  The applicant should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of RE codes. 

5.  The applicant is also advised that the Board is not the custodian of his records.  Therefore, any request he would like to make to obtain a complete copy of his Army records should be addressed to the responsible agency, which is the 

National Personnel Records Center, Military Personnel Records, 9700 Page Avenue, St. Louis, MO 63132-5100.  For further information go to http://www.archives.gov/st-louis/military-personnel/standard-form-180.html.

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)                                         AR20090004035



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ABCMR Record of Proceedings (cont)                                         AR20090004035



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