IN THE CASE OF:
BOARD DATE: 9 SEPTEMBER 2009
DOCKET NUMBER: AR20090006530
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 reentry eligibility (RE) code 3 be changed so that he may enlist in the Army.
2. The applicant states that he completed his enlistment and was given an honorable discharge. He is trying to enlist in the Regular Army (RA) but has been denied because his RE code is 3. He wants this error corrected so he can enlist.
3. The applicant provides a copy 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 27 August 1993, the applicant enlisted in the RA. He completed his initial training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman). He was subsequently assigned for duty with the 2nd Battalion, 16th Infantry Regiment, located at Fort Riley, Kansas.
3. On 17 August 1995, the applicant's commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate). The basis for this action was a record of bad checks, failure to maintain military standards, missing formation, and failure to be at his appointed place of duty. The applicant indicated that he did not desire to submit a statement on his own behalf and did not appeal the action. The appropriate authority approved the bar to reenlistment that same day.
4. On 16 December 1995, the applicant was released from active duty due to completion of required active service. He was transferred to the U.S. Army Reserve Control Group (Annual Training). He had attained the rank of private first class, pay grade E-3, and had completed 2 years, 3 months and 17 days of creditable active duty service. Accordingly, he was given a separation program designator (SPD) code of LBK and an RE code of 3. His character of service was honorable.
5. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 4 provides for the separation of Soldiers due to expiration of their active service obligation.
6. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes. RE code 3 applies to persons separated from their last period of service with a waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.
7. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of LBK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 4, who were ineligible for immediate reenlistment due to a bar to reenlistment. Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper RE code to assign to Soldiers for this reason.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests, in effect, that his RE code 3 be changed so that he may enlist in the Army.
2. The RE code 3 establishing his ineligibility for enlistment/reenlistment without a waiver was correctly entered on his separation document in accordance with governing regulations. There is no evidence of error or injustice.
3. There is no apparent basis for removal or waiver of the applicants disqualification that established the basis for the RE code 3. The applicants desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code for this purpose.
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 the aforementioned 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.
__________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) AR20090006530
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ABCMR Record of Proceedings (cont) AR20090006530
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