IN THE CASE OF:
BOARD DATE: 14 January 2010
DOCKET NUMBER: AR20090013741
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 a change to his reentry eligibility (RE) code from RE-4.
2. The applicant states that his separation designator code (SPD) is "LBK" and that he has an honorable discharge. He believes his SPD code is a typographical error and would like to reenter the military but his RE code is keeping his paperwork from moving forward.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows that he enlisted in the Regular Army (RA) on 6 November 1986.
3. On 5 November 1989, the applicant was honorably separated after completing a total of 3 years of active military service. The DD Form 214 he was issued at the time shows he was separated under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations), by reason of expiration of term of service. Item 4a (Grade, Rate, or Rank) shows that he was a private
(E-1), item 12c (Net Active Service this Period) shows that he had 3 years of active service, item 26 (Separation Code) shows he was assigned an SPD code of LBK, and item 27 (Reentry Code) shows he was assigned an RE code of RE-4.
4. Table 2-3 (SPD/RE Code Cross Reference Table) of Army Regulation 635-5 (Separation Documents), Interim Change 1, dated 2 October 1989, reflects the probable RE code based on the SPD code only. For Soldiers who have been assigned an SPD code of LBK, Table 2-3 requires further review to ensure a more restrictive code does not apply. Table 2-3 establishes RE-3C as the proper reentry code to assign to Soldiers separated with an SPD code of LBK if they failed to meet the grade and service criteria.
5. Table 3-1 (Retention Control Points) of Army Regulation 601-380 covers eligibility criteria, policies, and procedures for reenlistment in the RA. Chapter 3 of that regulation basic eligibility for immediate reenlistment and states in pertinent part that a Soldier may not exceed the control retention point as shown in Table 3-1 by more than 29 days before the expiration of the contracted service. This table shows that 3 years is the total active service in years for Solders in the rank of private to private first class.
6. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes, including RA RE codes.
RE-3C applies to persons completing their terms of service who are not considered fully qualified for reentry or continuous service at the time of separation but the disqualification is waivable. RE-4 applies to persons with a permanent disqualification that is not waivable.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant was a PVT on the date of his separation from AD and that he has completed 3 years of active duty service (AD). Applicable regulations show that the retention control point for a PVT in the Army is 3 years of total active service in years. By regulation, the proper RE code to assign members separated who are assigned an SPD code of LBK as a result of failure to meet the grade and service criteria is RE-3C, not RE-4. Therefore, it would be appropriate to correct the applicant's record to show he was assigned an RE code of RE-3C in conjunction with his 1989 separation.
2. The applicant is advised that although a change is being recommended to his RE code, this does not mean that he is fully qualified for reenlistment. RE-3C is applicable to members who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. Therefore, if he desires to enlist, he should contact a local recruiter determine his eligibility based on the needs of the Army and process an RE code waiver.
BOARD VOTE:
____x____ ____x____ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the current entry in item 27 of his 5 November 1989 DD Form 214 and replacing it with the entry "RE-3C."
_____________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) AR20090013741
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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