DOCKET NUMBER:  AR20090004420 


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 two separate applications, correction of appropriate military records to show a reentry eligibility (RE) code which would allow enlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.

2.  The applicant states that the type of separation that he received, the character of his service, and his separation code do not match the RE-3C code that he was furnished.

3.  The applicant provides in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 5 September 1990, the applicant enlisted in the Regular Army (RA) in San Antonio, Texas, for 2 years and 22 months in the pay grade of E-1.  He successfully completed his training as a medical specialist.  He was transferred to Fort Carson, Colorado, on 15 March 1991 and was assigned to Headquarters and Headquarters Company, 2nd Battalion, 35th Armor Regiment, as an ambulance aide/driver.

3.  The applicant was advanced to the pay grade of E-2 on 5 March 1991 and he was advanced to the rank and pay grade of private first class (PFC)/E-3 on 5 September 1991.

4.  On 5 February 1993, the applicant was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, at the expiration of his term of service (ETS) and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.

5.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he completed 2 years, 5 months, and 1 day of net active service.  He was furnished a separation code of LBK (expiration term of service) and a corresponding RE-3C code.

6.  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 (RA) and the US 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, including RA RE codes.

7.  RE-3C applies to persons who do not meet the reentry grade and service criteria of Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).  Individuals are ineligible to enlist unless a waiver is granted.  A waiting period of 2 years from separation is required before a waiver may be submitted.  Individuals may apply for a waiver through their nearest recruiting office.  Approval and disapproval of waivers are normally based on the needs of the Service at the time and the overall circumstances surrounding the individual’s previous separation.

8.  Amy Regulation 601-280 (Total Army Retention Program) provides the retention control point (RCP) for each enlisted pay grade.  Chapter 2 provides the 
basic eligibility criteria for retention.  It states, in pertinent part, that Soldiers in the rank of private first class are not authorized to reenlist except as "indicated below."  Soldiers in the rank of PFC who are on a 2-year initial enlistment and who will have 24 months or less of active Federal service on the day they are discharged to reenlist may, if otherwise qualified, to include those with approved waivers, be reenlisted without a grade waiver.  In no case will the new ETS exceed the RCP for the next higher rank.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show an RE code which would allow enlistment in the U.S. Army.

2.  His contentions have been considered; however, there appears to be no basis for removal or waiver of those disqualifications which established the basis for the RE code that he was assigned.

3.  The available records indicate that he did not qualify for reenlistment at the time of his REFRAD.  In accordance with the applicable regulation, the applicant did not meet the reentry grade and service criteria required for reenlistment without a waiver.  His has provided insufficient evidence to show that the RE-3C code that is currently reflected on his DD Form 214 is incorrect.

4.  Failure to grant the relief requested does not mean that the applicant has been completely denied the opportunity to reenlist.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4 of Army Regulation 601-210.  Therefore, since enlistment criteria does change, and since the applicant has the right to apply for a waiver, it is suggested that he periodically visit his local recruiting station to determine if he should apply for a waiver.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004420



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ABCMR Record of Proceedings (cont)                                         AR20090004420



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