BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007155 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a reentry eligibility (RE) code of RE-1 or an RE code which would allow his enlistment in the U.S. Army Reserve (USAR).  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.

2.  The applicant states that there is no paperwork that indicates that the RE code that he was assigned is correct.

3.  The applicant provides no additional documentation 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.  On 12 July 2000, the applicant enlisted in the Regular Army in Tampa, Florida, for 4 years in the pay grade of E-2.  He successfully completed his training as a signal intelligence analyst.

3.  The applicant was promoted to the pay grade of E-3 on 12 July 2001 and he was promoted to the pay grade of E-4 on 1 March 2003.

4.  The applicant’s Enlisted Record Brief, dated 29 February 2004, shows that the applicant failed his Army Physical Fitness Test (APFT) and that he was assigned a reenlistment eligibility prohibition code of 9E.

5.  The applicant was honorably released from active duty (REFRAD) on 11 July 2004 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, at the completion of his required active service and he was transferred to the USAR Control Group (Reinforcement) to complete his required Reserve obligation.

6.  The DD Form 214 that the applicant was furnished at the time of his REFRAD shows that he was assigned a separation code of LBK (Involuntary REFRAD or Transfer due to Completion of Required Active Service) and an RE-3 code.

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in pertinent part, provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes including RA RE codes.  RE-3 applies to individuals not qualified for continued Army service, but the disqualification is waivable.  The individual is ineligible for enlistment unless a waiver is granted after a 2-year period has elapsed since discharge.

8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), then in effect, provided 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.  Additionally, the SPD/RE Code Cross Reference Table established RE codes to be assigned for each SPD code.

9.  A separation code of LBK was used for RA Soldiers ineligible to reenlist who were released from active duty on completion of active service and transferred to the Reserve Component to complete a military service obligation.  The SPD/RE Code Cross Reference Table shows that RE-3 was the applicable RE code assigned for individuals involuntarily REFRAD at the completion of active service and transferred to the Reserve Component to complete a military service obligation.

10.  Army Regulation 680-29 (Military Personnel, Organization, and Type of Transaction Codes) provides that data code 9E relates to unacceptable physical readiness qualifications.

11.  Army Regulation 635-5 (Separation Documents) is the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect an individual’s service as it exists at the time of his discharge or REFRAD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he was furnished an RE-1 code or an RE code that will allow his enlistment in the USAR.

2.  His contentions have been noted.  However, the applicant was REFRAD on 11 July 2004 and furnished an RE-3 code.  His Enlisted Record Brief shows that he was assigned a reenlistment eligibility prohibition code of 9E after he failed his APFT which constitutes unacceptable physical readiness qualifications.

3.  In accordance with the applicable regulation, an RE-3 code was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment or had an immediate reenlistment prohibition code.

4.  The applicant has provided no evidence to show that the RE code that was assigned to him is in error or unjust.  The RE-3 is consistent with the basis for his separation and in this case there is no basis to correct the existing code.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that his separation which resulted in his RE-3 was and is unjust.  If he wishes to enlist in the USAR, an RE-3 code is waivable; therefore, he should seek the guidance of Armed Forces recruiters/career counselors in seeking such a waiver if he is otherwise qualified.

5.  In order to justify correction of a military record the applicant must show 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.

6.  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)                                         AR20090007155



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ABCMR Record of Proceedings (cont)                                         AR20090007155



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