IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20110024979 


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, correction of his reentry eligibility (RE) code and separation program designator (SPD) code so that he may be eligible to enlist in the U.S. Army Reserve (USAR).

2.  The applicant states someone made an error.  

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 2 May 2004
* a DD Form 214 worksheet

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.  He enlisted in the Regular Army (RA) on 22 November 1995.  

3.  His Enlisted Record Brief (ERB) shows he was promoted to specialist on 1 February 1998.

4.  On 2 May 2004, he was discharged in the rank of specialist.  He had completed 8 years, 5 months, and 11 days of active service that was characterized as honorable.  His DD Form 214 notes he was eligible for full involuntary separation pay; however, he did not receive the pay because he refused to enlist in the Ready Reserves for 3 years.  He was assigned an SPD code of "JBK" and an RE code of "3."

5.  Army regulations provide 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) provides eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve. 

	a.  an RE-1 applies to individuals completing their enlistment who are considered qualified to reenter the U.S. Army.

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

6.  Army Regulation 601-280 (Total Army Retention Program) prescribes the criteria for the Total Army Retention Program.  For those Soldiers serving in the Active Army, it outlines procedures for immediate reenlistment or extension of enlistment.  

	a.  Immediate reenlistment in the Active Army is authorized for periods of 
2, 3, 4, 5, or 6 years.

	b.  Table 3-1 (Retention control points) shows the retention control point (RCP) for a specialist is 10 years.  The RCP for a specialist (promotable) is 
15 years.

	c.  A Soldier may not exceed the RCP by more than 29 days before the expiration of contracted service.

	d.  There may be cases in which this regulation does not prescribe a waiver process for a certain disqualification and a waiver is not prohibited by this regulation.  If so, Soldiers who are otherwise qualified for reenlistment may be recommended by the unit commander through command channels to the Commander, Human Resources Command (HRC).

7.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation shows the SPD code of "JBK" as shown on the applicant’s DD Form 214 denotes an involuntary discharge and specifies the narrative reason for discharge as completion of required service and that the authority for discharge under this SPD is Army Regulation 635-200 (Personnel Separations), chapter 4.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence the applicant was in a promotable status on the date of his discharge.  His promotion status is evidenced by the entry on his DD Form 214 stating he was eligible for full separation pay.  It is reasonable to conclude his unit would not have involuntarily discharged him if he was in a promotable status.

2.  Based on the available evidence he was not in a promotable status; therefore, his RCP was 10 years.  He had already completed 8 years, 5 months, and 
11 days of active service.  He was involuntarily discharged at the expiration of his term of service and correctly assigned an SPD code of "JBK" because he could not reenlist for the minimum period of 2 years without exceeding his RCP. 

3.  At the time of discharge he was not eligible for immediate reenlistment without a waiver.  There is no evidence a waiver was requested from HRC.  Therefore, the assignment of the RE code of "3" was correct.

4.  The applicant is advised that although his RE code of "3" was properly assigned this does not mean he is totally disqualified from returning to military service.  The disqualification upon which his RE code was based may be waived for enlistment purposes.  He is advised that if he desires to enlist he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and process enlistment waivers for the applicant’s RE code if he is otherwise qualified.


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)                                         AR20110024979



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ABCMR Record of Proceedings (cont)                                         AR20110024979



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