IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010492 


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 his reentry eligibility (RE) code of "3" be changed to a "1."

2.  The applicant essentially states that he wants to enlist in the military and serve his country again.  He also states that he received an RE code of "3" because he was absent from his unit due to being young and immature at the time.  Further, he indicates that he returned to his unit after being gone for 5 months and chose the option to deploy to Iraq.  He contends that it has been 3 years since he was released from active duty and is now a mature man who has received an associate degree and that he would love to enlist in the military.  Also, he claims that his RE code is giving him a hard time with recruiters, who told him that they could not work with him and recommended that he look into whether he could get it changed.

3.  The applicant provides no additional evidence in support of this 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's military records, although incomplete, show that he enlisted in the Regular Army on 25 September 2001.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  Although his rank progression is not known, he apparently was reduced to the rank and pay grade to private/E-2 following his absence without leave from 2 March 2004 to 9 September 2004.  He served in Kuwait and Iraq from 9 October 2004 to 23 September 2005, where in part he was awarded the Combat Infantryman Badge.  On 31 December 2005, he was honorably released from active duty at the expiration of his term of service under the provisions of Chapter 4 (Separation for Expiration of Service Obligation), Army Regulation 635-200 (Enlisted Personnel).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that his rank and pay grade at the time of his release from active duty was private/E-2, and that he had completed 3 years, 8 months, and 28 days of active duty service.  He was also transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation, which was to terminate on 13 September 2009.  However, orders, dated 2 October 2009, released the applicant from the USAR Control Group (Reinforcement) and assigned him to a USAR unit in Portland, Oregon, effective 1 October 2009.  These orders also show that his expiration of term of service is 13 May 2010.

3.  Item 26 (Separation Code) of the applicant's DD Form 214 shows an entry of "LBK," which identifies him as being involuntarily released from active duty at the completion of his required period of active service.  He was ineligible for, barred from, or otherwise denied reenlistment.  The SPD/RE Code Cross Reference Table maintained by the United States Army Human Resources Command establishes RE code "3" as the proper RE code to assign to Soldiers discharged for this reason.

4.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes, including Regular Army RE codes.  An RE code of "3" applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation.  They are ineligible to reenlist unless a waiver is granted.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

5.  Army Regulation 601-280 also identifies moral and administrative disqualifications for reenlistment and provides, in pertinent part, that a Soldier may not exceed the retention control points as shown by more than 29 days before expiration of contracted service (reenlistments or extension).  This regulation also shows, in pertinent part, that the retention control point for Soldiers in the rank and pay grade of private first class/E-3 and below is 3 years of active service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE code of "3" should be changed to a "1."

2.  The fact that the applicant again wishes to serve his country is admirable.  However, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200, chapter 4 at the completion of his required active service.  He had exceeded the retention control point for his rank and pay grade of private/E-2 and, as a result, he was ineligible for, barred from, or otherwise denied reenlistment.

3.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for discharge is changed.  His narrative reason for separation was based on his involuntary release from active duty at the completion of his service obligation and due to him being ineligible for reenlistment due to reaching his retention control point.  Therefore, there is no basis upon which to change this reason.

4.  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 did not submit any evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting relief in this case.

5.  The applicant is advised that although his request to have his RE code changed is being denied, he may still apply for enlistment with a waiver.  He should contact his local recruiting office to do so if he wishes.  Recruiters are required to process a request for waiver.  However, he should realize that enlistment standards depend upon the needs of the service at the time of application for enlistment.  There is no inherent right by a former service member to be enlisted in the Armed Forces.  The Armed Forces choose its enlistees from among those best qualified to meet their requirements.  Therefore, if he is not at first successful, it is suggested that he periodically visit his local recruiting station so as to keep abreast of the changing recruiting needs of the Armed Forces.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  While the Board regrets that a more favorable response could not be accomplished, it wants to thank the applicant for his service to our Nation and for his desire to rejoin the military.



      ___________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)                                         AR20090009233



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ABCMR Record of Proceedings (cont)                                         AR20090010492



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