IN THE CASE OF:	

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018479 


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 correction of item 27 (Reentry Code) and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 1995.

2.  The applicant states that he was released from active duty due to a defective enlistment agreement after the Army breached his contract.  He also states that his reentry eligibility (RE) code should be changed from RE-3 to RE-1 so he may reenter military service.

3.  The applicant provided a copy of his DD Form 214, dated 30 November 1995, in support of his request.

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 12 November 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  His records also show he served in Alaska from on or about 9 March 1993 to on or about 11 November 1995 during which he executed a 3-year reenlistment in the RA on 2 May 1995.  The highest rank/grade he attained was specialist four/E-4.

4.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, the DD Form 214 he was issued at the time of his separation shows he was discharged on 12 November 1995 in accordance with chapter 7, section IV, of Army Regulation 635-200 (Personnel Separations) by reason of a defective enlistment agreement.  Item 26 (Separation Code) of this form shows the entry "MDS" and Item 27 shows the entry "RE-3."

5.  On 21 May 1997, he executed a 4-year enlistment in the Connecticut Army National Guard (ARNG) and was voluntarily transferred to the Florida ARNG on 27 June 1997.

6.  On 12 May 1999, he was reduced by the Florida ARNG to private/E-2 and on 25 February 2000 he was reduced to private/E-1.  He was ultimately released from the ARNG on 1 April 2000 as an unsatisfactory participant with a general under honorable conditions character of service and an RE-3.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).

7.  On 9 February 2001, he was reassigned to the USAR Control Group (Reinforcement) as an unsatisfactory participant and on 30 April 2002 he was honorably discharged from the USAR.

8.  Army Regulation 635-200 sets policies, standards, and procedures for separation of enlisted personnel.  Section IV, chapter 7, provides for defective or unfulfilled enlistment or reenlistment agreement.  It states that a defective enlistment agreement exists when the Soldier was eligible for enlistment in the Army but did not meet the prerequisites for the option for which enlisted.  This situation exists in the following circumstances:  (1) a material misrepresentation by recruiting personnel upon which a Soldier reasonably relied and thereby was induced to enlist for the option or (2) an administrative oversight or error on the part of the recruiting personnel in failing to detect that the Soldier did not meet all the requirements for enlistment commitment and (3) the Soldier did not knowingly take part in creation of the defective enlistment.  Soldiers separated under this paragraph are awarded an honorable character of service unless an entry level separation is required.

9.  Army Regulation 635-200 states 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 RA and the USAR.  Table 3-1 included a list of the RA RE codes.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. 
The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "MDS" SPD code is the correct code for Soldiers separating under chapter 7 of Army Regulation 635-200 by reason of defective enlistment.

11.  The SPD/RE Code Cross Reference Table, dated 20 September 1993, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "MDS" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstances surrounding the applicant's defective reenlistment are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was honorably released from active duty under the provisions of chapter 7, section IV, of Army Regulation 635-200 with an SPD code of JGA and an RE-3.   In the absence of the facts and circumstances, it is presumed that the separation proceedings were conducted in accordance with law and regulation applicable at the time.

2.  He was separated under the provisions of chapter 7 of Army Regulation 
635-200 by reason of a defective reenlistment.  The appropriate SPD code associated with chapter 7 is SPD code MDS and the corresponding RE code associated with this SPD code is RE-3 which is correctly shown in item 26 of his DD Form 214.

3.  The applicant's desire to reenter military service is noted.  However, his RE code did not prevent him from enlisting in the ARNG on 21 May 1997.  Additionally, 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 enlist, 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 may process enlistment waivers for the applicant's RE code.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief.

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)                                         AR20090018479



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ABCMR Record of Proceedings (cont)                                         AR20090018479



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