BOARD DATE: 16 September 2010
DOCKET NUMBER: AR20100010487
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 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to a 1.
2. The applicant states that he had zero flags attached to his enlisted record brief and there was no chapter put in place or completed in regard to his military career and his current RE Code of 3 is preventing him from returning to active duty.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 18 August 1999 for a period of 4 years and training as a personnel information systems management specialist. He completed his one-station unit training at Fort Jackson, South Carolina and was transferred to Fort Polk, Louisiana, his first and only duty assignment.
3. On 8 April 2003, he reenlisted for a period of 2 years. He was promoted to the pay grade of E-5 on 1 July 2003 and deployed to Iraq in support of Operation Iraqi Freedom from 1 November 2003 to 1 July 2004.
4. On 15 December 2004, the applicant signed a DA Form 4991-R (Declination of Continued service Statement) in which he declined to meet the service remaining requirements for assignment to Korea. Prior to signing the statement he acknowledged by his initials that by signing the statement he understood, in pertinent part:
* He was placed in a non-promotable status
* He was prohibited from reenlistment or extension
* He was removed from the promotion standing list (if applicable)
* He was prohibited from applying for reentry into the active Army for a period of at least 93 days if separated at the expiration of his term of service (ETS)
* He was required to receive a grade determination from Headquarters Department of the Army if approved for reentry into the active Army
* He was not eligible for separation pay
5. On 7 April 2005, he was honorably released from active duty (REFRAD) due to completion of required service. He had served 5 years, 7 months, and 20 days of total active service. He was issued a separation code of MBK and a RE Code of 3.
6. 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 processing into the Regular Army and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes. Re Codes of 1 or 3 may be issued for a separation code of MBK depending on the circumstances surrounding the separation.
7. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.
DISCUSSION AND CONCLUSIONS:
1. 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 that requirement.
2. The applicants separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicants rights.
3. The applicant was separated under the provisions of Army Regulation 635-200, chapter 4, due to completion of required service and was properly issued an RE Code of 3 in accordance with the applicable regulations due to the fact that he had a self-imposed bar to reenlistment against him as a result of his signing the DA Form 4991-R.
4. The applicants contentions have been noted. However, there are procedures whereby the applicant can apply to a local recruiter for a waiver of his RE Code if he is in otherwise qualified and the needs of the Army at the time justify his return to service. Accordingly, there is no basis to grant his request at this time.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x____ ___x____ ____x___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our
Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
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