IN THE CASE OF:	

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090006962 


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 the Reentry Eligibility (RE) code of 3 that is shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 15 November 2005, be changed to an RE code of 1.

2.  The applicant states, in effect, that she requested an early separation to attend school.  She also states that she spoke to a recruiter about coming back into the military after completing her master's degree in the fall of 2009 and that she understands that she is required to obtain a waiver due to her RE code.  She believes this is extreme.  

3.  The applicant provides her DD Form 214; three memoranda from Headquarters, U.S. Army 6th Recruiting Brigade; a memorandum from the U.S. Army Human Resources Command, dated 10 August 2005; a memorandum from the University of Nevada Las Vegas (UNLV), dated 10 June 2005; and transcripts from UNLV.

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 7 May 1997 and successfully completed basic training and advanced individual training.  She was awarded military occupational specialty 93Y (Unit Supply Specialist).

3.  On 14 June 2005, the applicant's commander recommended approval of her request to be separated for the convenience of the government to attend the fall semester at UNLV.

4.  On 10 August 2005, the HRC approved the recommendation for separation for convenience of the government.  On 15 November 2005, the applicant was separated under the provisions of chapter 5, Army Regulation 635-200, with an honorable discharge, by reason of "SECRETARIAL AUTHORITY."  She had completed 8 years, 6 months, and 9 days of creditable active service with no lost time.

5.  The applicant's DD Form 214 ending on 15 November 2005 shows in item 26 (Separation Code) the Separation Program Designator (SPD) of "KFF" and item 27 (Reentry Code) shows a "3."

6.  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.  It states, in pertinent part, that the SPD code of KFF is the appropriate code to assign to Soldiers separating under the provisions of paragraph 5-3, Army Regulation 635-200, by reason of Secretarial Authority.  The SPD/RE Code Cross Reference Table contained in the regulation establishes that the RE code assigned to members separated with the SPD code of KFF will be determined by the Headquarters, Department of the Army (HQDA) directive authorizing the separation.  





7.  Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Paragraph 3-21 of the regulation states that an RE code of 3 applies to a Soldier who is not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. 

8.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  Recruiting personnel are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she needs her RE code changed on her DD Form 214 to be eligible to reenter the military.  However, the ABCMR does not change appropriately assigned RE codes to make an individual eligible for reentry in the military.  

2.  The available evidence shows the applicant voluntarily requested an early discharge for the purposes of attending school.  Her separation processing was accomplished in accordance with the applicable regulations in effect at the time to include the assignment of her RE code of 3.  Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  

3.  However, this does not mean the applicant has been completely denied the opportunity to enlist.  Since she is eligible to apply for a waiver, she has the option of visiting her local recruiting station and consulting with recruiting personnel who are required to process a waiver 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)                                         AR20090006962



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ABCMR Record of Proceedings (cont)                                         AR20090006962



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