IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100027610 


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 correction of his reentry (RE) code to show "1."

2.  The applicant states he completed his 3-year service obligation and he was honorably discharged with a separation program designator (SPD) code of MBK and he does not know why he received an RE-3 code.  He believes that through an administrative error he was given an RE-3 but he needs it to be changed to an RE-1 to reenter active duty.

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 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 served in the Regular Army (RA) from 12 February 2002 through 11 February 2005.

3.  On 11 February 2005, he was honorably released from active (REFRAD) duty at the completion of required active service in the rank/grade of specialist (SPC)/E-4.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.  He completed
3 years of creditable active service.  His DD Form 214 shows in:

	a.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the:

* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon

	b.  Item 25 (Separation Authority) the entry Army Regulation 635-200,
chapter 4;

	c. Item 26 (Separation Code) the entry MBK; and

	d.  Item 27 (RE Code) the entry "3."

4.  His Enlisted Record Brief (ERB) shows in:

	a.  section I (Assignment Information) a Flag (unfavorable personnel action) Code of AA (adverse action - initial report) that was initiated on 20 October 2004, and

	b.  section III (Service Date):

* # [Number] Days Lost a blank entry
* Reenlistment Eligibility/Prohibition code of "9X" [Other disqualification - not otherwise identified]
* AGCM [Army Good Conduct Medal] Eligibility Date of 20050211
(11 February 2005)

5.  The record contains no documentation of any negative or derogatory counseling, nonjudicial punishments, or court-martials.  There is no documentation of the flagging action or the reason for the 9X disqualification code except as noted on the ERB.

6.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, chapter 4, for a voluntary REFRAD carries an SPD of MBK.

7.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army (RA), U.S. Army Reserve (USAR), and the Army National Guard.  It provides the following:

	a.  RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement to change RE code exists to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction;

	b.  an RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are fully qualified for enlistment if all other criteria are met; 

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

	d.  paragraph 3-23b, states Soldiers who received an RE-3 are fully eligible for Reserve Component enlistment if their last discharge was from the RA; if the DD Form 214 is annotated with separation authority of Army Regulation 635-200, chapter 4; and if they received an SPD of [among others] MBK;

	e.  The SPD/RE Code Cross-Reference Table indicates an SPD of MBK carries either an RE code of 1 or 3.  Note 6 states that an RE-3 is to be used when Soldier’s record indicates they are:

		(1)  Ineligible for or otherwise denied immediate reenlistment;

		(2)  Has a Declination of Continued Service Statement (DCSS);

		(3)  Has a grade and service criteria in Army Regulation 601-210, paragraph 3-10;

		(4)  Has time lost due to AWOL or confinement; or

		(5)  Has an Immediate Reenlistment Prohibition Code of 9T.

8.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR 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 states he completed his 3-year service obligation and he was honorably discharged with an SPD of MBK and he does not know why he received the RE-3 code.  He believes that through an administrative error he was given an RE-3 but he needs it to be changed to an RE-1 to reenter active duty.  

2.  The applicant was REFRAD on 11 February 2005.  The SPD of MBK is the correct designation for Soldiers REFRAD and transferred to the USAR.  The MBK can generate either an RE-1 or an RE-3 code depending on other factors.

3.  Although the applicant's record does not contain any clarifying information as to what occurred on or about 20 October 2004 to generate the flagging action, his ERB is annotated accordingly and was sufficient to generate an immediate reenlistment prohibition code of 9X.  

4.  Without documentation as to why he was flagged and given the 9X code, there is insufficient evidence to determine if an RE-1 or an RE-3 was more appropriate.  Therefore, the presumption of regularity must be applied. 

5.  Without evidence to overcome the presumption of administrative regularity, there is insufficient evidence to show that the RE-3 was not appropriate

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief at this time.

7.  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.

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)                                         AR20100027610



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ABCMR Record of Proceedings (cont)                                         AR20100027610



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