IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100008862 


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 (RE) code be changed from an RE code of 3 to 1.

2.  The applicant states the following:

a. he was separated from the Army by reason of completion of required
service;

b.  he received an honorable discharge; and

c. he cannot reenlist until Item 27 (Reentry Code) of his DD Form 214
(Certificate or Release or Discharge from Active Duty) is changed to an RE code of 1.

3.  The applicant provides a copy of his separation document 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 military records show he enlisted in the Regular Army (RA) and entered active duty on 22 January 2002.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  The applicant's Military Personnel Records Jacket (MPRJ) contains Department of the Army, Headquarters, United States Army Garrison Orders Number 205-0666, dated 24 July 2006.  These orders directed the applicant's release from active duty (REFRAD), effective 4 November 2006.

4.  On 4 November 2006 the applicant was honorably REFRAD.  The separation document issued to him at that time shows he completed 4 years, 9 months, and 13 days of active military service and that he attained the rank of specialist (SPC/E-4) on 1 November 2004, which was the highest grade he held on active duty.

5.  The applicant's record is void of any evidence that he was ineligible for, or was denied reenlistment, or that he signed a Declination of Continued Service Statement (DCSS).  Further, he had no time lost due to being absent without leave (AWOL), he was never confined, and had not reached his retention control point (RCP) as a SPC/E-4 (which was 10 years).

6.  The applicant's DD Form 214 also confirms that he was REFRAD under the provisions of Chapter 4, Army Regulation 635-200, by reason of completion of required active service.  Item 26 show that he was assigned a Separation Program Designator (SPD) code of “MBK,” and Item 27 shows he was assigned an RE code of 3.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  A Soldier separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized.


8.  Pertinent Army Regulations provide 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 covers 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.  That chapter includes a list of armed forces RE codes, including RA RE codes.  An RE code of 3 applies to members who are considered not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  An RE code of 1 applies to members who are fully eligible for reenlistment on the date of REFRAD.

9.  Army Regulation 635-5-1 (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 states, in pertinent part, that the SPD code of MBK is the appropriate code to assign to Soldiers separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required service.  The SPD/RE Code Cross Reference Table establishes that an RE code of 1 would be assigned to members separated under the provisions of this regulation except those who are ineligible for or otherwise denied reenlistment; have a DCSS; did not meet the grade and service criteria of paragraph 3-10, Army Regulation 601-210 (RCP); or have time lost time due to being AWOL; or in confinement an RE code of 3 would be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his assigned RE code should be changed from an RE code of 3 to 1.

2.  In accordance with the regulation an RE code of 3 will be assigned to Soldiers who are separated under the provisions of Chapter 4, Army Regulation 635-200 with an SPD code of “MBK” when they are ineligible for or denied reenlistment, have a DCSS in force, have reached their RCP, or those who have time lost; otherwise, an RE code of 1 was the proper code to assign.  Absent evidence that any of the above conditions existed warranting an RE code of 3, he should have been assigned an RE code of 1.  Thus, it would be appropriate to correct his record accordingly.

3.  In view of the foregoing, the applicant's DD Form 214 should be corrected as recommended below.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his 4 November 2006 DD Form 214 by:

   a.  deleting the RE code of 3 in Item 27, and adding the RE code of 1; and 
   
   b.  providing him a correction to his DD Form 214 that reflects these changes.




      _______ _   __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)                                         AR20100008862



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ABCMR Record of Proceedings (cont)                                         AR20100008862



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