BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007075 


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 the Reenlistment Eligibility (RE) code on his
26 October 2006 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a code that will allow him to reenter the military.

2.  The applicant states he was assigned the RE code of "3" because he was flagged for failure of the Army Physical Fitness Test (APFT).  However, when he passed the APFT the flag should have been removed.  The applicant concludes he is trying to reenter the military as an officer.

3.  The applicant provides a copy of his DD Form 214.

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 record shows he enlisted in the Regular Army on 30 April 2002.  The applicant was honorably released from active duty on 26 October 2006 after serving 4 years, 5 months, and 27 days.

3.  Item 25 of the applicant's DD Form 214 shows the separation authority as Chapter 4, Army Regulation 635-200.  Item 26 lists his separation code as "MBK" and item 27 shows his RE code as "3."

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation provides, in pertinent part, that a Soldier will be separated upon the expiration of enlistment or the fulfillment of service obligation.  A Soldier being separated upon expiration of enlistment or fulfillment of the service obligation will be awarded a character of service of honorable, unless the Soldier is in an entry-level status and the service is uncharacterized.  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.  

5.  Army Regulation 635-5-1 (Separation Program Designator Codes(SPD)) states that the 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.  

6.  Army Regulation 635-5-1 provides that the SPD code of "MBK" is the correct code for RA Soldiers released from active duty for completion of required active service when they are ineligible for, barred from, or otherwise denied reenlistment at the completion of their enlistment.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers and shows the SPD code and corresponding RE code.  The SPD code of "MBK" has a corresponding RE code of "3."  This RE applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

7.  Field Manual 21-20 provides that all Soldiers in the Active Army, Army National Guard, and Army Reserve must take the APFT twice a year regardless of their age.  The APFT is a three-event physical performance test used to assess muscular endurance and cardiorespiratory (CR) fitness.  The records of Soldiers who fail a record APFT for the first time and those who fail to take the APFT within the required time period must be flagged in accordance with Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions).  Soldiers who fail any or all of the events must retake the entire APFT.  In case of test failure, commanders may allow Soldiers to retake the test as soon as the Soldiers and commanders feel they are ready.  Soldiers without a medical profile will be retested not later than 3 months following the initial APFT failure.

8.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) provides the flagging process includes the physical security and maintenance of the Military Personnel Records Jacket (MPRJ) of Soldiers not in good standing.  A flag is initiated immediately when a Soldier's status changes from favorable to unfavorable.  Flags are classified as Non-transferable or transferable depending on whether they can follow a Soldier to another unit.  Failure to pass the APFT or failure to take the APFT within the required period is a transferrable flag.

DISCUSSION AND CONCLUSIONS:

The applicant maintains he passed the APFT and the flag should have been removed.  However, he has provided no evidence to show he was not flagged at the time of separation.  Therefore, in the absence of documentation to substantiate his claim, the presumption of regularity must be applied.  

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)                                         AR20100007075



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2