IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090013517 


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 reenter the military.

2.  The applicant states, in effect, he has an honorable discharge with an RE code of 3 and a separation code of LBK on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He believes he should have received an RE code of 1.  He is seeking reentry into the military.

3.  The applicant provides a copy of his DD Form 214 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 show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 24 November 1993.  He was discharged from the USAR DEP on 17 January 1994 (sic) and he enlisted in the Regular Army (RA) on 21 January 1994.  He was awarded the military occupational specialty (MOS) 13M (Multiple Launch Rocket System (MLRS) Crewmember).  The highest rank/grade he attained was private first class (PFC)/E-3.

3.  The applicant was released from active duty on 22 May 1996 after completing 2 years, 4 months, and 2 days of active service.  His DD Form 214 shows he was assigned a separation program designator (SPD) of LBK and an RE code of 3.

4.  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.

5.  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.

6.  Army Regulation 635-5-1 (SPD Codes), table 2-3, indicates the SPD code of LBK denotes Completion of Required Active Service.  Note 7 of table 2-3 states that this code is to be used for RA Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

7.  The Army Human Resources Command (HRC) 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 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 shows that the applicant's 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 (UCMJ).  There is insufficient evidence to determine the disqualification with any certainty.

2.  However, since the applicant's iPERMS shows his separation was involuntary, a presumption of regularity must be made; that what the Army did was correct.  As such, there is no basis for granting the applicant's request.

3.  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.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20090013517



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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