IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090018497 


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 RE-3 to a more favorable code.

2.  The applicant states that he was a heavy Soldier and that he had poor eating habits and wrongfully ignored the healthy-eating guidelines put forth so vigorously by the Army.  However, since his discharge, he has used his education benefits to graduate from college last summer.  He is currently a contractor but has recently considered reentering military service as an officer.  He would like his RE code upgraded so he can complete a reentry into military service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 18 July 2005, 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 for a period of 4 years on 19 July 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 96U (Unmanned Aerial Vehicle (UAV) Operator).  The highest rank/grade he attained during this period of military service was private first class/E-3 with a date of rank as 22 September 2003.  He was assigned to D Troop (Surveillance Troop), 1st Squadron, 14th Cavalry, Fort Lewis, WA.

3.  The applicant's records also show he served in Iraq from 31 October 2003 to 22 October 2004.  His awards and decorations include the National Defense Service Medal, the Iraq Campaign Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, and two overseas service bars. 

4.  On 9 March 2005, Headquarters, I Corps and Fort Lewis, Military Personnel Division, Fort Lewis, WA, published Orders 068-0135 directing the applicant’s reassignment to the U.S. Army Transition Center for the purpose of separation, effective 18 July 2005, and subsequent transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

5.  On 24 May 2005, Headquarters, I Corps and Fort Lewis, Military Personnel Division, Fort Lewis, WA, published Orders 144-017, amending Orders 068-0135, dated 9 March 2005, to show he was assigned to the 379th Engineer Battalion, Missoula, MT.

6.  The applicant’s records further show he was honorably released from active duty (REFRAD) on 18 July 2005.  The DD Form 214 he was issued shows he was released from active duty under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations) by reason of completion of his required active service.  This form further confirms he completed 4 years of creditable active military service during this period of enlistment.  Item 26 (Separation Code) shows the entry "LBK" and item 27 (Reentry Code) shows the entry "3." 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  A code of "1" applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  A code of "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  However, those individuals are ineligible unless a waiver is granted.  

8.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the 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.  Two codes are used for Soldiers released from active duty for completion of required active service under the provisions of chapter 4 of Army Regulation 635-200:

	a.  The SPD code of "LBK" is the correct code for RA Soldiers REFRAD for completion of required active service under the provisions of chapter 4, Army Regulation 635-200 who sign a Declination of Continued Service Statement (DCCS) or are ineligible for, barred from, or otherwise denied reenlistment at the completion of their enlistment.  

	b.  The SPD code of "MBK" is the correct code for Soldiers REFRAD for completion of required active service under the provisions of chapter 4, Army Regulation 635-200 when eligible to reenlist and are transferred to the Reserve component to complete their military service obligation.  This SPD code is also used for Army National Guard of the United States (ARNGUS) or USAR Soldiers who are REFRAD on completion of required active service or period for which ordered to active duty.

9.  The SPD/RE Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table, dated 8 September 2005, shows the SPD code and corresponding RE code.  The SPD code of "LBK" has a corresponding RE code of "3" and the SPD Code "MBK" has a corresponding RE code of "1."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was honorably REFRAD, on   10 June 2007, and he was transferred to the USAR Control Group (Reinforcement) for completion of his Reserve obligation.  This would have normally required that he be assigned an SPD code of "MBK."  However, the applicant appears to have had his favorable personnel actions suspended (flagged) due to being overweight.  The applicant confirms that by stating he was a heavy Soldier.  This flag would have put him in a non-promotable status and ineligible to reenlist.  

2.  Having been ineligible for reenlistment, the only available SPD code that the applicant could have been assigned under the provisions of chapter 4, Army Regulation 635-200, is the SPD code of "LBK" which is correctly shown on the applicant's DD Form 214.  The RE code associated with this type of SPD code is "3."  Therefore, the applicant received the appropriate RE code associated with his discharge.

3.  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 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 character of his discharge and the RE code are in error or unjust.  The applicant did not submit evidence that would satisfy that 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)                                         AR20090018497



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ABCMR Record of Proceedings (cont)                                         AR20090018497



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