IN THE CASE OF:
BOARD DATE: 15 March 2011
DOCKET NUMBER: AR20100022470
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, in effect, that his Reentry (RE) Code be changed from a 3 to a 1.
2. The applicant states, in effect, that he saw a recruiter and he asked what the medical board said their reasons for discharging him were and he was informed that he never went before a medical board. He continues by stating he desires to go back into the Army without a waiver.
3. The applicant provides 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 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 14 November 2002 for military occupational specialty (MOS) 21B (Combat Engineer) and a cash enlistment bonus. He completed his training, he was awarded the MOS, and he was transferred to Fort Riley, Kansas. He deployed to Iraq from 7 September 2003 to 29 September 2004. His records also show he was reduced to the pay grade of E-1 on 6 October 2005.
3. The facts and circumstances surrounding his discharge are not present in the available records; however his DD Form 214, which was authenticated by the applicant, shows he was honorably discharged on 28 October 2005 under the provisions of Army Regulation 635-200, paragraph 5-17 due to a condition, not a disability. He had served 2 years, 11 months, and 11 days of total active service and he was issued a separation code of JFV and an RE Code of 3.
4. Army Regulation 635-200 (Enlisted Separations) serves as the authority for enlisted separations. Paragraph 5-17 (Other Designated Physical or Mental Conditions) provides that commanders may approve separation for other designated physical or mental conditions not amounting to disability (Army Regulation 635-40) and excluding conditions appropriate for separation processing under paragraphs 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.
5. Army Regulation 601-280 (Army Retention Program) serves as the authority for reenlistments and establishes reenlistment control points (RCP). It provides, in pertinent part, that Soldiers in the pay grade of E-1 at the end of their enlistment are not authorized to reenlist. Soldiers who are reduced to the pay grade of E-1 are not allowed to extend their enlistment.
6. RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. Personnel separated with a separation code of JFV will be assigned an RE code of 3 at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it must be presumed that the applicant's discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2. The applicants contentions have been noted; however, his DD Form 214 appears to correctly reflect that he was discharged due to a physical condition that was not a disability and he has failed to show through the evidence submitted with his application and the evidence of record that he was not properly discharged in 2005 or that he was issued an improper separation and RE Code.
3. It is also noted that while his RE Code was issued based on his separation code, which is indicative of the reason for his separation, he would also have received an RE Code of 3 based on his pay grade at the time of discharge which also requires a waiver to enlist.
4. Accordingly, there appears to be no basis to grant his request for a change of his RE Code. However, he is not precluded from applying for a waiver at his local recruiting office if he can show that he has overcome the basis for his separation.
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) AR20100022470
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ABCMR Record of Proceedings (cont) AR20100022470
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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