IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120003160 


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 the reentry eligibility (RE) code 3 he received from the North Carolina Army National Guard (NCARNG) be changed to an RE code 1 or 1A.

2.  The applicant states he desired to move to Florida (FL) from North Carolina (NC) and transfer out the NCARNG and the ARNG altogether.  He received the verbal OK to do so and was at no point informed of a requirement to complete his contract within his new home state's ARNG.  He would never willfully break a contract and would have either formally requested official release from the service or fulfilled the remaining time in Florida had he been properly informed.  He wants to serve in the U.S. Coast Guard Reserve.

3.  The applicant provides:

* his letter, dated 26 July 2011, to the NCARNG
* an email, dated 7 August 2011, from the NCARNG
* a letter, dated 27 September 2011, from the Army Review Boards Agency
* a letter, dated 25 October 2011, from the Deputy Chief of Staff for Personnel, NCARNG	

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 NCARNG on 2 January 1999 for a period of 4 years.  He had previously completed 3 years, 10 months, and 1 day of active service in the U.S. Marine Corps.

3.  On 2 January 1999, he signed a Statement of Understanding of Reserve Obligation and Responsibilities.  Paragraph 5 of this statement states if he changed residence to a location too distant to permit continued participation with his unit he should apply for an interstate transfer.  He would have 90 days in which he was required to locate and join another Reserve Component unit.

4.  The exact date he moved to Florida is not shown in his military records.

5.  On 31 October 1999, he was discharged from the NCARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of 3 years, 3 months, and 27 days contractual obligation.  He was discharged by reason of failure to report to the gaining state upon interstate transfer.  He was assigned an RE code of 3.

6.  On 16 September 2003, he was discharged from the USAR.

7.  In a letter, dated 25 October 2011, the Deputy Chief of Staff for Personnel for the NCARNG denied his request for a change in his RE code.

	a.  Soldiers who leave the area where their National Guard unit is located are obligated to join another unit at their new location in order to complete the remainder of their enlistment obligation.

	b.  When he enlisted in the NCARNG in January 1999 he incurred the remainder of his service obligation as a participating Soldier.

	c.  When he failed to join another unit in Florida, he was discharged and assigned to the USAR Control Group (Reinforcement) for the remainder of his obligation.  The appropriate RE code for this type of discharge is 3.

8.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), in effect at the time, prescribed the criteria, policies, procedures, and responsibilities to separate from service enlisted Soldiers in the Army National Guard of the United States.

	a.  Table 2-6 defined Armed Forces RE codes.

* RE 1 applied to persons completing an initial term of active service 	who were fully qualified when last separated

* RE-1A applied to career Soldiers with over 6 years of service for pay 	and who were fully qualified when last separated

* RE-3 applies to persons who are not qualified for continue Army 	service, but the disqualification was waivable

	b.  Paragraph 5-39 stated when a transferred Soldier did not report by the established date the losing state would discharge from the state only and assign the Soldier to the USAR.  The RE code 3 would be assigned.

	c.  Paragraph 8-27w provided the reason for discharge: failure to report to the gaining state upon interstate transfer.

DISCUSSION AND CONCLUSIONS:

1.  He contends that at no point was he informed of a requirement to complete his contract within his new home state's ARNG.  However, when he enlisted in the NCARNG he signed a statement of understanding of his obligation and responsibilities that indicated he knew he had 90 days after his move to Florida to locate and join another Reserve Component unit.

2.  He did not complete his contractual term of service.  Therefore, he was not eligible for an RE code of 1.

3.  He did not have over 6 years of service for pay.  Therefore, he was not eligible for an RE code of 1A.

4.  The reason for his discharge disqualified him for continued Army service at the time of his discharge.  However, the disqualification was waivable.  Therefore, the RE code 3 that was assigned is correct.

5.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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)                                         AR20120003160





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ABCMR Record of Proceedings (cont)                                         AR20120003160



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