IN THE CASE OF:
BOARD DATE: 10 November 2009
DOCKET NUMBER: AR20090009455
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 his reentry eligibility (RE) code be changed from RE-3 to RE-1.
2. The applicant states he should have been assigned an RE-1 code.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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. The applicant's military records show that he enlisted in the Regular Army (RA) on 6 July 1995 and he was advanced to the rank/grade of specialist (SPC)/E-4.
3. He was honorably released from active duty at the expiration of his term of service on 5 July 1998. The DD Form 214 he was issued shows that he was assigned a Separation Code (SPD) of "LBK" and an RE code of RE-3.
4. The applicant's Official Military Personnel File (OMPF) as shown on the interactive Personnel Electronic Records Management System (iPERMS) shows that he was involuntarily transferred to the US. Army Reserve (USAR) to complete his remaining Reserve obligation.
5. 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 LBK is the appropriate code to assign to Soldiers separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active service when an RA Soldier is ineligible for, barred from, or otherwise denied reenlistment and is separated on completion of enlistment. The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of LBK.
6. Army Regulation 635-200 further states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 included a list of the RA RE codes:
a. RE1 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 Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted.
7. Army Regulation 15-185 (ABCMR) 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's iPERMS shows the major personnel actions taken during his military service; however, there is no evidence of record that shows the basis for his SPD of LBK and his RE-3 code at the time of his release from active duty. Therefore, the specific reason for his "involuntary transfer" to the USAR from active duty and assignment of SPD code LBK and RE-3 code cannot be determined.
2. However, as the applicant was assigned the SPD of "LBK" with the proper corresponding RE-3 code, and there is no evidence that the SPD and/or his RE-3 code was issued in error or unjust, there is no basis for granting the applicant's requested relief.
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) AR20090009455
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ABCMR Record of Proceedings (cont) AR20090009455
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