BOARD DATE: 26 January 2010
DOCKET NUMBER: AR20090012676
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, correction of appropriate military records to show a reentry eligibility (RE) code of 1 which would allow him to enlist without a waiver.
2. The applicant states he was able to reenlist at the end of his time of service but elected not to. He states there were no pending actions towards him. He states that he is trying to enlist with prior service, but his current RE code would require a waiver.
3. The applicant provides no additional documentary 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 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 he served in the Army National Guard prior to enlisting in the Regular Army for 3 years on 1 October 1998. He was awarded the military occupational specialty of field artillery surveyor and was promoted to pay grade E-4.
3. The applicant was released from active duty on 30 September 2001 after completing 3 years of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was assigned a separation program designator (SPD) of LBK and an RE code of 3.
4. Army Regulation 635-200 (Personnel Separations Enlisted Separations), chapter 4, specifies that Soldiers will be separated upon expiration of enlistment or fulfillment of service obligation.
5. Army Regulation 635-5-1 (SPD Codes), table 2-3, indicates the SPD code of LBK denotes completion of required active service.
6. The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) contain a list of major personnel actions. An annotation on this list of actions indicates he was involuntarily released from active duty for completion of required service.
7. The U.S. Army Human Resources Command publishes a cross-reference list of SPD and RE codes. The cross-reference list in effect at the time showed that an SPD code of LBK was assigned an RE code of 3.
8. 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 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve Components. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes. This regulation also states that an RE code of 3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.
9. Army Regulation 601-210 further provides that RE codes may be changed only if they are determined to be administratively incorrect.
DISCUSSION AND CONCLUSIONS:
1. While the applicant's iPERMS records show that his separation from active duty was involuntary, his records do not contain any information concerning why his separation was involuntary. He may have been overweight or he may have accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice. There is insufficient evidence to determine the disqualification with any certainty.
2. However, since the applicant's records show his separation was involuntary, a presumption of regularity must be made that what the Army did was correct.
3. As such, there is no basis for granting the applicant's request.
4. The applicant's disqualification for enlistment is waivable under Army Regulations. He should submit a request to waive his RE-3 code if he desires to enlist.
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.
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