BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20110023119 


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 change of item 27 (Reentry (RE) Code) of his
DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states when he left the service at the end of his term of service he had no idea that he was being involuntarily discharged.  His only concern at the time was to obtain an honorable discharge.  He did not know what his code meant then; however, he knows now.  He served all the way until his expiration of term of service, so he doesn't know why he was given this code.  He has now joined the Maryland Army National Guard (MDARNG) and he has applied for an Active Guard Reserve (AGR) position.

3.  The applicant provides a copy of his DD Form 214.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 5 December 1986 for a period of 8 years.  On 29 July 1987, he was discharged from the USAR DEP and on 30 July 1987, he enlisted in the Regular Army (RA) for a period of 3 years in the rank/grade of private (PV1)/E-1.  He completed training and he was awarded military occupational specialty 71L (Personnel Administrative Specialist).

3.  On 29 November 1989, he was honorably discharged for the purpose of immediate reenlistment.  On 30 November 1989, he reenlisted in the RA for a period of 3 years in the rank/grade of specialist (SPC)/E-4.

4.  On 22 April 1992, he was again honorably discharged for the purpose of immediate reenlistment.  On 23 April 1992, he reenlisted in the RA for a period of 2 years as an SPC/E-4.

5.  On 15 April 1994, the applicant enlisted in the USAR and was assigned to a troop program unit, to report within 30 days following his release from active duty (REFRAD).

6.  On 22 April 1994, the applicant was honorably REFRAD by reason of completion of required active service in the rank/grade of SPC/E-4.  He was transferred to a USAR unit in North Carolina.  The DD Form 214 he was issued at the time shows in:

* Item 12c (Net Active Service This Period) he completed 6 years,
8 months, and 23 days of creditable active service
* Item 18 (Remarks) he received $10,310.00 in separation pay
* Item 25 (Separation Authority) the entry "Army Regulation 635-200, chapter 4"
* Item 26 (Separation Code) the entry "LBK"
* Item 27 (RE Code) the entry "3"
* Item 28 (Narrative Reason for Separation) the entry "Completion of Required Active Service"

7.  There is no evidence of record that shows the applicant was on a valid promotion standing list at the time of REFRAD.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  It states under chapter 4, a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code LBK is the appropriate code to assign to Soldiers involuntarily separated under the provisions of Army Regulation 635-200,
chapter 4, by reason of completion of required active service.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of LBK.

10.  Army Regulation 635-200 further states 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 and processing into the RA and the USAR.  Table 3-1 included a list of the RA RE codes:

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

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

11.  Army Regulation 601-280 (Total Army Retention Program) prescribes the criteria for the Army Retention Program.  For those Soldiers serving in the RA, it outlines procedures for immediate reenlistment or extension of enlistment.  For Soldiers separating from the RA, it prescribes eligibility criteria and options for enlistment or transfer into the Reserve Component (USAR and Army National Guard).  Chapter 2 (Qualification for immediate Reenlistment), paragraph 2-22 (Basic eligibility criteria) states a Soldier must not exceed the retention control points (RCP) as shown by more than 29 days before expiration of contracted service (that is, reenlistment or extension).  Soldiers, who have attained local order-of-merit promotion list status, will be considered for reenlistment under the RCP for the rank to which they will be promoted.  The RCP for SPC and SGT at the time were:

RANK
TOTAL ACTIVE SERVICE
CPL/SPC
8 years
SGT
13 years
12.  Department of the Army (DA) message 242130Z July 1991, subject:  Transition Assistance, provided information on transition benefits available to Soldiers who were involuntarily separated.  For transition purposes, "involuntary separation" meant release from active duty of any Soldier on or after 30 September 1990 and who was denied reenlistment/continuation or was involuntarily separated under other than adverse conditions.  In order to be eligible for separation pay, a Soldier must meet a five-part test.  The Soldier must:  

* have completed at least 6 years, but fewer than 20 years of active service
* receive a service characterization of honorable or under honorable conditions (general)
* sign a written agreement to serve 3 years in the Ready Reserve
* have completed an initial term of enlistment
* be involuntarily separated or denied reenlistment

DISCUSSION AND CONCLUSIONS:

1.  It appears he was involuntarily separated based on his ineligibility to reenlist that would have placed him beyond his retention control point of 8 years of total active service.  His record also shows he received separation pay based on his involuntary separation as authorized by the referenced DA message.  It also appears he enlisted in the USAR to report following his REFRAD as a criterion for receipt of involuntary separation pay.

2.  Although the applicant honorably completed his term of service records indicate his assigned RE code was administratively correct and in conformance with applicable regulations in effect at the time of his REFRAD.  The fact that he was not fully qualified for continuous service at the time of separation based on his RCP warranted an RE-3 code.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110023119



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ABCMR Record of Proceedings (cont)                                         AR20110023119



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