IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100007318 


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 code 3 (RE-3) be changed so he may enlist in the U.S. Air Force. 

2.  The applicant states that he does not know why he was given an RE-3.  He contends that he never got into any trouble while serving in the military.

3.  The applicant provided a copy of his DD Form 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.  On 21 November 1991, the applicant enlisted in the Regular Army (RA) for a period of 2 years and 19 weeks.  He completed his initial training and he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant was advanced to private first class, pay grade E-3, on 
21 December 1992.

4.  The applicant's DD Form 214 shows he was released from active duty on
2 April 1994 under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.  He had completed 2 years, 4 months, and 12 days of creditable active service.  He was given a Separation Program Designator (SPD) code of LBK and an RE-3.  His service was characterized as honorable.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

5.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE-3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

6.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of LBK was the appropriate code for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 4, for completion of required active service who were ineligible for, barred from, or otherwise denied reenlistment on completion of their current term of active duty service.  Additionally, the SPD/RE Code Cross Reference Table establishes R-3 as the proper RE code to assign to Soldiers for this reason.

7.  Army Regulation 601-280 (Total Army Retention Program), in effect at the time, prescribed the criteria for the Total Army Retention Program.  For those Soldiers serving in the Active Army, it outlined procedures for immediate reenlistment or extension of enlistment.  Section VIII (Rank), paragraph 2-22c (Basic eligibility criteria - Soldiers in the rank of PFC) states that Soldiers in the rank of PFC are not authorized to reenlist without a waiver.

8.  Army Regulation 15-185 (ABCMR), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE-3 should be changed so he can enlist in the U.S. Air Force.

2.  It appears that based on the applicant's rank of PFC at the time of his expiration of term of service (ETS), he was not authorized to reenlist in accordance with the retention regulation in effect at the time.  As such, the narrative reason for his discharge, SPD code of LBK, and RE-3 code were correctly entered on his DD Form 214 in accordance with the governing regulations.  There is no evidence of error or injustice.

3.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE-3 code.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of a reentry code for this purpose.

4.  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 are responsible for processing RE code waivers.

5.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge was conducted in accordance with law and regulations applicable at the time.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100007318



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2