IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013341 


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 eligibility (RE) code be changed.

2.  The applicant states:

* he was honorably discharged
* he has reviewed all of his records, he has received assistance from the National Personnel Records Center, and nothing validates his RE code

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 April 2005
* letter, dated 10 March 2010, from the Office of the Chief of Legislative Liaison 

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.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 29 September 1998 for a period of 3 years.  On 12 March 2001, he was honorably discharged for immediate reenlistment.  He reenlisted on 13 March 2001 for a period of 4 years.  On 8 August 2002, he extended his enlistment for a period of 1 month.  He served as an Abrams armor crewman in Iraq from 30 April 2003 to 30 June 2004.  On 12 April 2005, he was honorably discharged in the rank of staff sergeant under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 4, for completion of required active service after completing 13 years, 3 months, and 17 days of creditable active Federal service.

3.  Item 25 (Separation Authority) of the applicant's DD Form 214 for the period ending 12 April 2005 shows the entry "Army Regulation 635-200, chapter 4."  Item 26 (Separation Code) of this DD Form 214 shows the entry "KBK."  Item 27 (Reentry Code) of this DD Form 214 shows the entry "3."  Item 28 (Narrative Reason for Separation) of this DD Form 214 shows the entry "completion of required active service."  Item 29 (Dates of Time Lost During This Period) of this DD Form 214 shows the entry "NONE."

4.  Section III (Service Data) of the applicant's Enlisted Record Brief, dated 7 January 2005, shows his reenlistment prohibition code is "9U."

5.  Policy Message 05-06, dated 10 November 2004, subject:  Immediate Reenlistment Prohibition Codes, shows the description for immediate reenlistment prohibition code "9U" is unacceptable weapons qualification.

6.  The applicant's final Noncommissioned Officer Evaluation Report (NCOER) covering the period January 2004 to December 2004 shows he qualified as marksman with his personal weapon and he qualified on Tank Table VIII with a score of 715 out of 800 during Operation Iraqi Freedom.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code "KBK" is "completion of required active service" and the regulatory authority is Army Regulation 635-200, chapter 4.

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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

9.  Paragraph 3-10d of Army Regulation 601-210 states that if a staff sergeant is eligible to enlist with or without a waiver or grade determination the term of enlistment when added to previous active Federal service will not exceed 22 years of active Federal service.

10.  Paragraph 3-15a of Army Regulation 601-210 states that enlistment for prior-service applicants in the Regular Army is authorized for a period of at least 3 but not more than 6 years.  A specific military occupational specialty may require a minimum term of service.

11.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

12.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

13.  The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that SPD code "KBK" will be assigned an RE code of 1 or 3.  This table states that RE code 3 will be assigned when a Soldier's record indicates (for current enlistment period) that he/she is ineligible for or otherwise denied immediate reenlistment; has a declination of continued service statement; has (not met) grade and service criteria in Army Regulation 601-210, paragraph 3-10; has time lost due to being absent without leave or confinement; or has an immediate reenlistment prohibition code of "9T" [waiver required for continued Regular Army service (suspended)].

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's Enlisted Record Brief shows he has a reenlistment prohibition code for unacceptable weapons qualification, his final NCOER shows he was weapons and tank qualified.  There is no evidence of record which shows the applicant was not weapons qualified.

2.  Since it appears the applicant did not meet the criteria in the SPD/RE Code Cross Reference Table for RE code 3, it would be appropriate to correct item 27 of his DD Form 214 for the period ending 12 April 2005 to show "RE-1."

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 deleting the entry in item 27 of his DD Form 214 for the period ending 12 April 2005 and replacing it with "1."



      ____________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)                                         AR20100013341



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ABCMR Record of Proceedings (cont)                                         AR20100013341



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