BOARD DATE:	  February 18, 2010 

		DOCKET NUMBER:  AR20090012581 


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 (RE) code of 3 be changed to an RE code of 2.  

2.  The applicant states, in effect, he was informed that his assigned RE code is incorrect and that it should be changed to an RE code of 2.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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.  The applicant’s military record shows he was inducted into the Army of the United States and entered active duty on 6 October 1970.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B 
(Light Weapons Infantryman).

3.  On 15 April 1971, the applicant requested a dependency discharge under the provisions of chapter 6, Army Regulation 635-200.  On 29 April 1971, the separation authority approved this request.  On 11 May 1971, the applicant was honorably discharged accordingly.  

4.  The applicant's DD Form 214 shows he held the rank of corporal and that he had completed a total of 7 months and 6 days of active military service.  It also shows that he was separated under the provisions of chapter 6, Army Regulation 635-200, by reason of hardship.  Based on the authority and reason for discharge, he was assigned a Separation Program Number (SPN) of 227 and an RE code of 3.  

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 of this regulation provides the authority for the separation from active military service because of dependency or hardship.  Chapter 5 provides the conditions under which enlisted personnel can be discharged or released from active duty for the convenience of the government.

6.  Pertinent Army regulations provide 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 601-280, in effect at that time, prescribed the eligibility governing the immediate reenlistment in the Regular Army of persons currently serving on active duty.  Table 1-3 of that regulation includes a list of armed forces RE codes, including RA RE codes.  The current version of the regulation provides for issuing an RE-1, RE-3 or RE-4.  RE-1 pertains to members fully qualified for reenlistment; RE-3 pertains to members who have a reenlistment disqualification, but the disqualification is waivable; and RE-4 pertains to members who are disqualified from reenlistment and the disqualification is not waivable.  

7.  The regulation in effect at the time of the applicant's discharge provided for assigning an RE code of 2 to members who were fully qualified for immediate reenlistment and were separated for the convenience of the government under the provisions of chapter 5, Army Regulation 635-200; however, this RE code no longer exists.  


8.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty and the Department of the Army SPD code and RE code cross reference table confirms the proper RE code assigned to members separated by reason of dependency/hardship, under the provisions of chapter 6, Army Regulation 635-200, is an RE code of 3.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his assigned RE code of 3 code is incorrect and that it should be upgraded to an RE code of 2 was carefully considered. However, there is insufficient evidence to support this claim.  

2.  The regulation in effect at the time of the applicant's discharge allowed for assignment of an RE code of 2 code to members separated by reason of convenience of the government under the provisions of chapter 5, Army Regulation 635-200.  This code was not applicable to members separated under the provisions of chapter 6, Army Regulation 635-200, by reason of dependency/hardship, as was the applicant.  

3.  By regulation, an RE code of 3 is the proper code to assign members separated under the provisions of Chapter 6, Army Regulation 635-200, by reason of dependency/hardship.  Therefore, the applicant's assigned RE code remains valid and is appropriate based on the authority and reason for his discharge.  Accordingly, there is an insufficient evidentiary basis to support granting the requested relief. 

4.  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 this 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)                                         AR20090012581



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ABCMR Record of Proceedings (cont)                                         AR20090012581



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