IN THE CASE OF:	  

		BOARD DATE:  10 May 2012

		DOCKET NUMBER:  AR20110022476 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to remove the remark "SIGNED DECLINATION FOR CONTINUED SERVICE, DA FORM 4991-R."  He also requests amendment of his reentry eligibility (RE) code 3 (RE-3) to RE-1 so he may rejoin a branch of the military.

2.  The applicant states his military records do not contain a copy of a DA Form 4991-R (Declination for Continued Service Statement (DSS)).  Therefore, he wants this remark removed from his DD Form 214 and his RE-3 changed to RE-1.  He further states he is interested in joining the Air Force and was unaware of these issues until they were revealed by an Air Force recruiter.

3.  The applicant provides copies of:

* letter from the National Personnel Records Center, dated 26 September 2011
* DD Form 214
* Orders 017-0007, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, dated 17 January 2007
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* DD Form 93 (Record of Emergency Data), dated 3 August 2006
* SGLV Form 8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 3 August 2006
* DA Form 1059 (Service School Academic Evaluation Report), dated 13 December 2002
* Standard Form 312 (Classified Information Nondisclosure Agreement), dated January 2004
* DD Form 2365 (Montgomery GI Bill (MGIB) Act of 1984), dated 21 July 1998
* Enlisted Record Brief (ERB), dated 17 January 2007

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 ERB, dated 17 January 2007, indicates his expiration of term of service was 1 March 2007.

3.  The applicant's DD Form 214 for the period ending 1 March 2007, shows:

	a.  he enlisted in the Regular Army on 8 July 1999;

	b.  he reenlisted on 16 July 2001 and again on 2 March 2005;

	c.  he was discharged on 1 March 2007 due to completion of required active service under the authority of Army Regulation 635-200 (Enlisted Separations), chapter 4;

	d.  his characterization of service was honorable;

	e.  his separation program designator (SPD) code was KBK;

	f.  he received an RE-3;

	g.  he signed a DA Form 4991-R; and

	h.  both he and the Chief, Transition Point, signed the DD Form 214.

4.  A review of the applicant's official military personnel file (OMPF) failed to locate any reference to a DSS.

5.  The Transition Point Processing System, a computer-based program used to generate DD Forms 214, automatically enters the statement "SIGNED DECLINATION FOR CONTINUED SERVICE" in the remarks block of the DD Form 214 based on an SPD code entry of KBK and an RE-3.

6.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE- 3 applies to persons separated from their last period of service with a waivable disqualification.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

7.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of KBK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 4, for completion of required active service.  Additionally, the SPD/RE Code Cross Reference Table establishes RE-3 as the proper RE code to assign to Soldiers who have signed a DSS.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board 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 contends that his DD Form 214 should be corrected by removing the remark "SIGNED DECLINATION FOR CONTINUED SERVICE, DA FORM 4991-R." He also requests amendment of his RE-3 to RE-1 so he may join the Air Force.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge was conducted in accordance with law and regulations applicable at the time.

3.  The applicant has not denied signing a DSS.  He only states that a copy of such statement is not in his OMPF.  The absence of documentation in his OMPF showing he made this statement does not make the entry on his DD Form 214 invalid or incorrect.

4.  There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for the RE-3.  The applicant's desire to continue in the service to his country is noted, however, there are no provisions authorizing the change of an RE code for this purpose.

5.  The ABCMR does not establish eligibility for entry in the Army nor does it 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 may process enlistment waivers for the applicant's RE code.

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 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)                                         AR20110022476



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ABCMR Record of Proceedings (cont)                                         AR20110022476



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