IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016368 


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 his reentry eligibility (RE) code from RE-3 to RE-1.

2.  The applicant states, in effect, he wants to reenter the military and go to Officer Candidate School and cannot without this change.

3.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 12 September 2002 and was trained in and awarded military occupational specialty 92Y (Unit Supply Specialist).

3.  The applicant's record shows that during his active duty tenure he earned the Army Achievement Medal (2nd Award), Navy Achievement Medal, National Defense Service Medal, Army Service Ribbon, and Global War on Terrorism Service Medal.

4.  On 11 September 2005, the applicant was honorably released from active duty (REFRAD) in the rank of specialist after completing 3 years of active military service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was separated under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations), by reason of completion of required service.  It also shows that he was assigned a separation program designator (SPD) code of MBK and an RE code of 3.  

5.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment.

6.  Chapter 3 of Army Regulation 601-280 also includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process waiver requests.

7.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The version of the regulation in effect at the time stated that SPD code MBK was the appropriate code to assign to Soldiers separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required service.  The SPD/RE Code Cross Reference Table in effect at the time provided for assigning either an RE-1 or RE-3 code.  The instructions stipulated that RE-1 would be disregarded and an RE-3 code assigned when a Soldier's record indicates he is ineligible for or otherwise denied reenlistment, had a Declination of Continued Service, has grade and service criteria, has time lost due to absence without leave or confinement, has an immediate reenlistment prohibition code, or elected to receive retired pay at age 60 in lieu of disability severance pay (Enlisted Reserve Component only).


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his RE-3 code should be changed to an RE-1 code was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The available evidence of record and independent evidence provided by the applicant is void of any documentation or indication regarding the circumstances that resulted in the applicant being assigned an RE-3 code.  However, the record does contain a properly constituted DD Form 214 that identifies the authority and reason for separation and the assigned SPD and RE codes.  

3.  The applicant's DD Form 214 and the information it contains carries a presumption of regularity in the separation process.  Absent evidence of error or injustice in the assigned SPD and RE codes, there is an insufficient evidentiary basis to support granting the requested relief at this late date.

4.  By regulation, members separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required service who are assigned an SPD code of MBK may be assigned either an RE-1 or RE-3 code.  Absent any evidence that the SPD and RE codes assigned to the applicant were in error at the time they were issued, they were and remain valid.

5.  Although the applicant was assigned an RE-3 code, this does not prohibit him from enlisting.  There are regulatory provisions that allow him to apply for a waiver to enlist/reenlist.  Therefore, if he would like to reenter military service, he should consult with recruiting officials who are responsible for submitting RE code waivers.

6.  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)                                         AR20090016368



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016368



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1