BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090008375 


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 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated
19 March 1992 be changed from a "3" to a "1."

2.  The applicant states that he has served in both Operation Desert Storm and Operation Enduring Freedom, that he has proven himself as a good Soldier, and he desires to serve on active duty in the Active Guard Reserve (AGR) program.  However, his RE Code prevents him from being considered for such positions.  He goes on to state that he made a mistake as a young Soldier; however, it should not hinder him from serving his country, his career, or from providing for his family.

3.  The applicant provides copies of correspondence to his congressional representative.

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 was born on 9 July 1970 and he enlisted in the Alabama Army National Guard (ALARNG) on 26 October 1988 for a period of 8 years.  He served in the ALARNG as a food service specialist until he was honorably discharged for the purpose of enlistment in the Regular Army (RA).  On
1 November 1989, he enlisted for a period of 3 years.

3.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted DD Form 214 signed by the applicant which reflects that he was honorably released from active duty (REFRAD) on 19 March 1992 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-15, due to failure to meet body fat standards.  He had served 2 years, 4 months, and 19 days of total active service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

4.  On 22 August 1993, he again enlisted in the ALARNG and he served until he was honorably discharged on 26 February 2001 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) due to failure to muster.  He was issued an RE Code of "3" and he was transferred to the USAR Control Group (Reinforcement).

5.  On 27 August 2002, the Alabama State Military Department, Office of the Adjutant General approved a waiver of his RE Code issued on 26 February 2001.  The applicant again enlisted in the ALARNG.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 20 March 2004 and to staff sergeant (SSG)/ E-6 on 29 June 2009.

6.  A review of the applicant's official records shows that in 2005, the applicant again failed to meet the height and weight standards in accordance with Army Regulation 600-9 (The Army Weight Control Program).

7.  Pertinent Army regulations provide that prior to discharge or REFRAD, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment 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 RA RE codes.
   
   a.  RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.
   
   b.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  The applicant was separated under the provisions of Army Regulation        635-200, chapter 5, due to his failure to meet body fat standards.  Additionally, having only completed 2 years, 4 months, and 19 days of his RA enlistment obligation he did not successfully complete his term of active service for entitlement to an RE Code of 1.  Therefore, he was properly issued an RE Code of 3 in accordance with the applicable regulations.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service during the period in question and the fact that his current RE Code is waivable.
 
4.  The ABCMR does not grant requests for a change in RE codes solely for the purpose of making the applicant eligible for other benefits.  Every case is individually decided based upon its merits when an applicant requests a change of this nature.

5.  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 that requirement.


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)                                         AR20090008375



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ABCMR Record of Proceedings (cont)                                         AR20090008375



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