IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090006414 


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 her reentry eligibility (RE) code of RE-3 be changed to either an RE-1 or RE-2.

2.  The applicant states she is trying to get back into the military, but she cannot because of her RE code.  She states her recruiter told her that she received an honorable discharge, therefore, she should have received an RE code of 1 or 2.  She states the code of RE-3 is stopping her from reentering the military.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of her 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 personnel records show she enlisted in the Regular Army on 28 October 1999.  She completed basic combat training and advanced individual training and was awarded the military occupational specialty of 92G (Food Service Specialist).  On 14 March 2001, she extended her enlistment for a period of 5 months to meet the service remaining requirements of a command sponsored tour.

3.  On 1 April 2003, the applicant was released from active duty by reason of having completed her required active service.  She was assigned a separation program designator (SPD) code of "LBK" and an RE code of RE-3.  She had completed 3 years and 5 months of active service that was characterized as honorable and she had 4 days of lost time.  The reason for the time lost was not indicated in her official military personnel file.

4.  Army Regulation 601-280 (Army Retention Program), then in effect, provided that Soldiers having a one-time occurrence of 1 to 15 days absent without leave (AWOL) or lost time required a waiver to reenlist.  Commanders (rank lieutenant colonel) of battalions or battalion sized units, or Special Court-Martial Convening Authority had approval authority for this waiver.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  Table C-1 (SPD codes applicable to enlisted personnel) shows that the SPD code “LBK” as shown on the applicant’s DD Form 214 specified the narrative reason for discharge as “Completion of Required Active Service."  Note 7 to the table states the SPD code "LBK" is to be used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

6. The SPD/RE Code Cross-Reference Table, dated 31 March 2003, shows that the appropriate RE code for the SPD code of "LBK" is RE-3.
 
7.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Paragraph 3-22 (U.S. Army Reentry Eligibility [RE Codes]) stated that an RE–1 applied to persons completing their term of service who were considered qualified to reenter the Army.  Paragraph 3-22 also stated that an 
RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

8.  Paragraph 3-22 of Army Regulation 601-210 also states the code of RE-2 applied to Soldiers separated prior to 28 February 1995 and is no longer used.

9.  Paragraph 3-27 of Army Regulation 601-210 provides that RE codes may be changed only if they are determined to be administratively incorrect.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her recruiter told her she should have received an RE code of RE-1 or RE-2 based on her honorable service.  However, as indicated in the regulation, the code of RE-2 was no longer used after 
28 February 1995.  Therefore, she could not have received an RE-2.

2.  The applicant had 4 days of lost time during her enlistment.  This made her ineligible for reenlistment without a waiver.  There is no record of her having applied for or received a waiver for reenlistment.  Therefore, based on Table C-1, Note 7 of Army Regulation 635-5-1, the assigned SPD code of "LBK" on her 
DD Form 214 is correct.

3.  According to the SPD/RE Code Cross-Reference Table the appropriate 
RE code for the SPD code of "LBK" is RE-3.  Therefore, the assigned RE code of RE-3 is also administratively correct.

4.  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.

5.  The applicant is advised that although her RE code was properly assigned, this does not mean she is totally disqualified from returning to military service. The disqualification upon which the RE-3 code was based may be waived for enlistment purposes.  The applicant is advised that if she desires to enlist, she should contact a local recruiter who can best advise her on her eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.







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)                                         AR20090006414



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ABCMR Record of Proceedings (cont)                                         AR20090006414



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