IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013400 


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 reenlistment eligibility (RE) code of  3 be changed so that he may reenter the Army without a waiver.  He also requests that his Army Achievement Medal be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that there is no error.  He humbly requests his RE code be changed so that he can reenlist without having to obtain a waiver.

3.  The applicant provides, in support of his application, a copy of his award certificate for the Army Achievement Medal. 

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.  On 26 May 2005, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13F (Fire Support Specialist).  

3.  The applicant's certificate showing award of the Army Achievement Medal indicates that the 4th Battalion, 31st Infantry Regiment, 10th Mountain Division, awarded him this medal on Permanent Orders 044-001, dated 13 February 2006. 

4.  On 7 November 2006, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, due to a physical or mental condition that was not a disability.  He had attained the rank of private first class, pay grade E-3, and had completed 1 year, 5 months and 12 days of creditable active duty service.  Accordingly, he was assigned a Separation Program Designator (SPD) Code of JFV and an RE Code of 3.  

5.  Item 13 (Awards, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 lists his awards as the National Defense Service Medal and the Army Service Ribbon.  It does not show award of the Army Achievement Medal.

6.  Army Regulation 635-200 (Personnel Separations), chapter 5, sets forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Paragraph 5-17 of this regulation provides for the separation of Soldiers due to other designated physical or mental conditions.  Such conditions include, but are not limited to chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, or other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.  A discharge under honorable or under honorable conditions is normally considered appropriate. 

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.


8.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD Codes to be entered on the DD Form 214.  The SPD Code of JFV was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, paragraph 5-17, for a condition that is not a disability.  Additionally, the SPD/RE Code Cross Reference Table establishes the RE Code of 3 as the proper RE Code to assign to Soldiers for this reason.

9.  The SPD/RE Codes Cross-Reference Table provides instruction for determining the RE Code for Active Duty and Reserve Component Soldiers.  It provides that the SPD Code JFV requires a corresponding RE Code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appropriately assigned an RE code of 3 in accordance with governing regulations.  There is no apparent foundation for removal or waiver of the applicant’s disqualification that established the basis for his assigned RE code.  The applicant’s desire to continue in the service to his country is noted; however, there are no provisions authorizing the change of an RE code for this purpose.

2.  The applicant should work with local recruiters on ascertaining his eligibility for continued military service and the processing of a waiver if he is eligible.

3.  The available evidence clearly shows the applicant was awarded the Army Achievement Medal.  Therefore, this award should be added to his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Army Achievement Medal to his DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing his RE code of 3. 




      _______ _   __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)                                         AR20090013400



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ABCMR Record of Proceedings (cont)                                         AR20090013400



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