IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090005360 


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 the reentry eligibility (RE) code he was assigned upon his discharge from the Army on 17 February 1992 be changed from RE-3 to RE-2.

2.  The applicant states, in effect, that even though his service was honorable, the RE code unjustly prevents him from enlisting at this time.  The injustice is beyond his understanding and control.

3.  The applicant provides a copy of his DD Form 214 and four character reference letters 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 enlisted in the Regular Army in pay grade E-3 on 22 August 1979 with prior service in the U.S. Army Reserve.  He completed basic and advanced individual training and was awarded military occupational specialty 31Q, tactical satellite/microwave systems operator.  He reenlisted on 24 August 1982 and on 18 February 1987.  He was promoted to pay grade E-5 on 7 August 1987.

3.  On 19 July 1991, the applicant's company commander recommended the applicant be barred from reenlistment.  He stated that the applicant's behavior and lack of mature judgment were indicative of his substandard performance.  This type of performance was not what was expected of a Soldier with the applicant's rank and time in service.  The applicant acknowledged receipt of the proposed action and elected not to submit a statement in his own behalf.  The bar to reenlistment was approved on 12 September 1991 and the applicant elected not to appeal.

4.  The applicant was honorably discharged in pay grade E-5 on 17 February 1992 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 4, at the expiration of his term of service (ETS).  He was credited with 12 years, 5 months, and 26 days of net active service.  Item 26 (Separation Code) of his DD Form 214 shows "JBK" and item 27 (RE Code) shows "RE-3."

5.  The applicant enlisted in the Alaska Army National Guard (AKARNG) in pay grade E-5 on 16 July 1992.  He was honorably discharged in pay grade E-4 on 23 June 1994 for acts or patterns of misconduct.  Item 26 (Reenlistment Eligibility) of his NGB Form 22 (Report of Separation and Record of Service) shows the entry "RE-3."

6.  The applicant submits four character reference letters addressed to the Commander, South Carolina Army National Guard (SCARNG), endorsing his enlistment in the SCARNG.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 4 provides the policy for the separation of a Soldier upon expiration of enlistment or fulfillment of service obligation.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  RE-2 was discontinued in March 1995.  

9.  Army Regulation 601-201, paragraph 3-10, also provides that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have corrected RE codes will be processed for a waiver at their request if otherwise qualified and a waiver is authorized.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator (SPD) codes to be used for these stated reasons. 
This regulation shows that the SPD of "JBK" as shown on the applicant’s DD Form 214 is appropriate when the narrative reason for involuntary discharge is "completion of required active service" and the authority for discharge is Army Regulation 635-200, chapter 4.

11.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "JBK" has a corresponding RE code of "3."  The assignment of RE-3 was approved for the following:  local bar to reenlistment, court-martial conviction, denied waiver request, denied reenlistment, and reenlistment ineligible.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant's company commander recommended he be barred from reenlistment based on his substandard performance.  The bar was approved on 12 September 1991.  It appears he never overcame the bar and he was honorably discharged on 17 February 1992 at his ETS.  He was issued an SPD code of "JBK" that has a corresponding RE code of "3."  The RE code applied to the applicant's DD Form 214 is commensurate with and corresponds to the reason for the applicant's discharge.

2.  The documentation submitted by the applicant in support of his request was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of his request or that his separation which resulted in him receiving an RE code of "3" was unjust.

3.  It appears the applicant was previously granted a waiver of his RE code based on his enlistment in the AKARNG in 1992.  Therefore, if the applicant wishes to enlist in the Army or Army National Guard, an RE code of "3" is waivable and he should seek the guidance of Armed Forces recruiters/career counselors in seeking such a waiver if he is otherwise qualified.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090005360



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ABCMR Record of Proceedings (cont)                                         AR20090005360



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