IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090006766 


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 shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, that the RE code should be changed to a more favorable RE code to allow him to enlist in the Air National Guard.  He states he is currently enrolled in undergraduate studies in commercial aviation and plans to enter the Air National Guard to gain experience in the aviation industry.

3.  The applicant provides a copy of his DD Form 214 with a separation date of 15 June 1991 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 enlisted in the Regular Army (RA) on 20 July 1982.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 13B (Cannon Crewmember).  He continued to serve through two reenlistment periods until his discharge.

3.  A review of the applicant's records shows that on 13 November 1990, the applicant received a general officer letter of reprimand.  The reprimand was issued when the applicant refused to take a lawfully required breathalyzer or blood test after he was stopped by military police for suspected driving under the influence of alcohol on 2 September 1990.

4.  A review of the applicant's official military personnel record shows that he was not on a local order-of-merit promotion list to sergeant. 

5.  On 15 June 1991, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 4 upon his expiration of his required term of active service.  On the date of his discharge, the applicant had completed 8 years, 10 months, and 26 days of active Federal service with no lost time.  He had attained the rank of specialist/pay grade E-4. Item 18 (Remarks) of the applicant's DD Form 214 shows that he was extended beyond his actual expiration date of service at the request and for the convenience of the government.

6.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JBK" and item 27 (RE Code) shows the entry "RE-3."

7.  Army Regulation 601-280 (Total Army Retention Program), in effect at the time, outlines procedures for Active Army Soldiers for immediate reenlistment or extension of their enlistment.  For Soldiers who are transitioning out of the Active Army, it prescribes eligibility criteria and options for enlistment into the Reserve Component.  In provides in pertinent part that a Soldier in the rank/pay grade of corporal or specialist/E-4 may not exceed the retention control point of 8 years total active service by more than 29 days before the expiration of contracted services.  Soldiers in the rank of corporal/specialist who are not on the local order-of-merit promotion list for sergeant may not be granted a waiver for the purposed of reenlistment. 

8.  Army Regulation 601-280, chapter 6 establishes the procedures and rationale for imposing a bar to reenlistment.  Soldiers may be barred from reenlistment for various infractions or reasons such as substandard personal appearance, late to formations, absent without leave, indebtedness, or recurrence of Article 15 punishments under the provisions of the Uniform Code of Military Justice.  Other infractions or reasons are traffic violations, minor violations of civil law, immoral acts, or personal behavior that brings discredit to his unit or the U.S. Army.

9.  Army Regulation 635-200 provides the basic authority for the separation of Soldiers.  Department of the Army separation policy is designed to strengthen the concept that military service is a calling different from any civilian occupation.  Chapter 4 of this regulation sets forth the policy for the separation of enlisted personnel at the expiration of their enlistment or fulfillment of their service obligation.

10.  Pertinent Army regulations provide that prior to discharge or release from active duty, Soldiers will be assigned reentry codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces reentry codes, including RA RE codes.  These codes are not considered derogatory in nature, they are codes used for identification of an enlistment processing procedure.

	a.  RE code 4 applies to Soldiers not qualified for continued service due to being separated from the service with a non-waivable disqualification.

	b.  RE code 3 applies to Soldiers who are not fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 1 applies to Soldiers completing their term of service and who are considered fully qualified to reenter the U.S. Army or Armed Forces.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation code to be used for these stated reasons.  The regulation shows that the separation code "JBK" represents an involuntary discharge upon expiration of term of service.  The authority for discharge under this separation code is Army Regulation 635-200, chapter 4.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code should be upgraded so he can enlist in the Air National Guard.

2.  Based on the applicant's rank of specialist/pay grade E-4, his lack of being on an order-of-merit list for promotion to sergeant, and his net active Federal service exceeding 8 years and 29 days, the applicant was not eligible to extend or reenlist. 

3.  While the evidence of record does not show the applicant received a bar to reenlistment, it is a presumption of administrative regularity that after his general officer letter of reprimand for driving under the influence a local bar to reenlistment was imposed by the applicant's chain of command.  With a local bar to reenlistment, the applicant would not be entitled to extend or reenlist in the Armed Forces without a waiver.

4.  An RE code, by itself, is not derogatory in nature, rather it is a general guideline used to facilitate the accession of Soldiers through reenlistment or enlistment in the Reserve Components of the Armed Forces.  An RE code of 3 is waivable by the Federal service if the service organization deems it necessary to enlist a prior-service Soldier.

5.  The applicant's separation code "JBK" is consistent with the basis for his involuntary separation as he was ineligible to reenlist.  

6.  The applicant's record did contain derogatory information, specifically an administrative admonishment.  In view of the facts in this case, the assigned RE code was and still is appropriate.

7.  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.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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)                                         AR20090006766



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ABCMR Record of Proceedings (cont)                                         AR20090006766



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