IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000296 


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 his RE (Reentry) code of 3 be changed to an RE-1.

2.  The applicant states he believes the RE-3 is unjust because he did complete his initial term of service.  He acknowledges he was punished twice under
Article 15, Uniform Code of Military Justice (UCMJ) for time lost totaling 4 days.  However he states he was reprimanded for this, he was reduced, lost pay, and placed on restriction and extra duty.

3.  He states he worked diligently to bounce back and regain the trust and respect of his peers and chain of command.  He notes he was subsequently promoted, deployed to Iraq, and awarded the Army Commendation Medal and Army Achievement Medal.  He states he was held 64 days passed his separation date for the convenience of the government under the Stop-Loss Program.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 June 2005 and a copy of a document showing his Stop-Loss status.

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.  Records show the applicant enlisted in the Regular Army on 25 March 2002.  His records contain no records of disciplinary actions although his DD Form 214 does indicate he had time lost for being absent without leave (AWOL) between 31 January - 2 February 2003 and between 4 - 6 April 2003.  That same form indicates he was advanced to the rank/grade of specialist (SPC)/E-4 on 1 June 2004.

3.  On 2 June 2005, after being retained on active duty for 64 days for the convenience of the government, the applicant was released from active duty upon the completion of his required service.  His DD Form 214 indicates he was assigned a Separation Code of “LBK” and an RE-3.  He was released from active duty in pay grade E-4 and his DD Form 214 confirms award of two Army Commendation Medals and an Army Achievement Medal, and that he was deployed to Iraq in support of Operation Iraqi Freedom.

4.  Following the applicant’s release from active duty he was assigned to a Troop Program Unit and in February 2010 he was honorably discharged from the U.S. Army Reserve (USAR).

5.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of this regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes.  An RE-3 applied to persons who are not considered fully qualified for reentry or continuous service at time of separation.

6.  Army Regulation 635-5-1 (Separation Program Designator (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.  It notes that an SPD code of “LBK” is the appropriate code when enlisted Soldiers are being involuntarily discharged upon completion of their required active service because they are ineligible for, barred from, or otherwise denied reenlistment at the time of separation.
7.  Additionally, the SPD/RE Code Cross Reference Table establishes RE Codes to be assigned for each SPD.  This table states that when the SPD is "LBK” the RE code will be RE-3.  The table also states that RE-3 will be utilized when the Soldier’s record indicates for the current enlistment period that the Soldier is ineligible for or otherwise denied immediate reenlistment.

8.  Army Regulation 601-280 (Army Retention Program) precludes the immediate reenlistment of Soldiers with more than a one-time occurrence of AWOL (absent without leave) or lost time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant SPD Code of LBK indicates the applicant was involuntarily released from active duty because he was not eligible for immediate reenlistment at the conclusion of his initial enlistment contract.  Although the specific basis for his ineligibility is unknown, it likely stems from the fact he had two, albeit brief, periods of lost time.  As such, the RE-3 was an appropriately assigned RE Code.

2.  While the applicant may have overcome his two periods of lost time, completed his punishment, and continued to Soldier on as evidenced by his subsequent promotion and receipt of personal decorations, none of those issues, either separately or in whole, serve as a basis to change a properly assigned RE code.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100000296



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2