IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001123


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, upgrade of his reentry (RE) code.
  
2.  The applicant states, in effect, his separation code and RE code are not in accordance with the narrative reason for separation cited on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

3.  The applicant provides:

* DD Form 214
* Permanent Orders 146-10, 177th Personnel Service Company (PSC), dated 11 October 1983
* Permanent Orders 22-1, 2nd Battalion, 42nd Field Artillery Regiment, dated 22 February 1985
* Permanent Orders 132-9, 573rd PSC, dated 22 September 1986

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 records show he enlisted in the Regular Army (RA) on            7 September 1977.  He completed training and was awarded military occupational specialty 31K (Combat Signaler).

3.  On 5 October 1990, he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, by reason of expiration term of service (ETS).  His DD Form 214 shows he completed 13 years and 29 days of net active service during this period of enlistment.  This form also shows the following, based on the authority and reason for his separation:

* Item 12c (Net Active Service This Period) shows he completed 13 years and 29 days of net active service during this period of enlistment
* Item 25 (Separation Authority) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4
* Item 26 (Separation Code) shows his separation code was JBK
* Item 27 (Reentry Code) shows his RE code was 3C
* Item 28 (Narrative Reason for Separation) shows he was discharged by reason of expiration term of service (ETS) 

4.  He provides 3 award orders, consisting of 2 Army Good Conduct Medal award orders and an Army Achievement Medal award order.

5.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3, of the regulation in effect at the time, prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including RA RE codes.  

   a. RE–1 applied to Soldiers who had completed their term of active service and were considered fully qualified to reenter the U.S. Army.  

   b. RE–3 applied to Soldiers who were not considered fully qualified for reentry or continued Army service at time of separation, but their disqualification was waivable.  These Soldiers were ineligible to reenlist without an approved waiver.

   c. RE–3C applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, who had completed over       4 months of service, who did not meet the basic eligibility pay-grade requirements of Army Regulation 601-280 (Total Army Retention Program), chapter 2, or who had been denied reenlistment under the Qualitative Retention Process.  These Soldiers were ineligible to reenlist without an approved waiver.

6.  Army Regulation 601-280, of the regulation in effect at the time, prescribed eligibility criteria and options available in the Total Army Retention Program.  Chapter 2 prescribed guidance on applicant processing, basic qualifications for reenlistment, procedures to be followed if waiver action was appropriate, and authorized reenlistment periods and grades.  Paragraph 2-22 stated that a soldier could not exceed the reenlistment eligibility for his current grade by more than 29 days before the expiration of his/her contracted service (i.e. reenlistment or extension).  To be eligible for reenlistment without waiver, Sergeants in the pay grade E-5 could have no more than 13 years of total active service (plus 29 days) before the expiration of their current contract.  

7.  Army Regulation (AR) 635-5-1 (Separation Program Designators (SPD) Codes), provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code (later known as separation code) to be entered on the DD Form 214.  The separation code JBK is the appropriate code to assign Soldiers ineligible for, barred from, or otherwise denied reenlistment who were discharged on completion of their enlistment under the provisions of Army Regulation 635-200, chapter 4.  

8.  The SPD/RE Code Cross Reference Table, dated 2 October 1989 and applicable to the governing regulation, established RE code 3C as the proper reentry code to assign Soldiers separated with a SPD code of JBK, for failure to meet grade and service criteria.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his RE code has been carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms he was ineligible for reenlistment because he exceeded the maximum allowable total active service for his grade at the time of the expiration of his contractual obligation.  By regulation, separation code JBK and RE code 3C are the proper codes to assign members separated under the provisions of Army Regulation 635-200, chapter 4, upon the completion of their required service, for failure to meet grade and service criteria.  The assigned separation code and RE code were valid at the time of his separation and remain valid.  Therefore, absent any evidence of error or injustice, it would be inappropriate to change them at this time.   

3.  The applicant is advised that although no change is being recommended to his RE code, this does not mean that he is disqualified from reenlistment.  The RE-3 code he was assigned applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation; however, the disqualification is waivable.  Therefore, if the applicant desires to reenlist, he should contact a local recruiter.  Those individuals can best advise a former service member as to the needs of the Army at the time, and may process 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)                                         AR20090000724



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ABCMR Record of Proceedings (cont)                                         AR20110001123



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