IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090018472 


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 that his reentry eligibility (RE) code be changed from a 4 to a 3.

2.  The applicant states that his RE code should have been a 3 instead of a 4, just like his last separation document reflected, and further states that he desires to serve his country.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 initially enlisted in the Regular Army on 25 July 1979 and served until he was honorably released from active duty on 1 August 1983 due to the expiration of his term of service.  He had served 4 years of total active service and had 8 days of confinement by civil authorities due to writing bad checks.  He was issued RE codes of 3 and 3B.

3.  On 17 April 1986, he again enlisted in the Regular Army with a moral waiver for a period of 3 years and training as a tank systems mechanic.  He completed his training at Fort Knox, Kentucky, and was transferred to Fort Leonard Wood, Missouri, for his first and only duty assignment.

4.  On 7 July 1988, the applicant's commander initiated a request to bar the applicant from reenlistment.  He cited the applicant's inability to manage his personal finances and family problems, his being terminated from the Army Correspondence Course Program for failure to meet minimum standards, his non-recommendation for promotion by his supervisor due to his failure to set proper standards in front of subordinates, and his failure to meet physical fitness standards as the basis for his recommendation.

5.  The applicant acknowledged that he had received a copy of the commander's recommendation and elected not to submit a statement in his own behalf.  The appropriate authority approved the recommendation on the same day.

6.  On 11 July 1988, the applicant submitted a request to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 16-5.  In his request he stated that he understood that if his request were approved, he would not be permitted to reenlist at a later date.

7.  The appropriate authority approved his request and directed that he be furnished an Honorable Discharge Certificate.

8.  Accordingly, he was honorably discharged on 22 July 1988 under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally-imposed bar to reenlistment.  He was issued an RE code of 4.

9.  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 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.  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 Regular Army RE codes.

10.  An RE code of RE-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as a bar to reenlistment.

11.  Army Regulation 635-200 provides the policies and procedures for enlisted personnel separation.  Paragraph 16-5 provides for the early separation of personnel denied reenlistment.  It provides, in pertinent part, that Soldiers who perceive that they will be unable to overcome a locally-imposed bar to reenlistment may apply for immediate discharge.  In doing so, the Soldier must indicate in his or her request that he or she understands that he or she will not be permitted to reenlist at a later date.

DISCUSSION AND CONCLUSIONS:

1.  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 the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant's rights.

3.  Notwithstanding the applicant's contention that he desires to again serve his country, he acknowledged at the time that he understood that he could not reenlist at a later date.  Accordingly, he was properly issued an RE code of 4 and he has failed to provide sufficiently mitigating evidence that would warrant a change of his RE code.

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)                                         AR20090018472



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ABCMR Record of Proceedings (cont)                                         AR20090018472



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