IN THE CASE OF:	  

		BOARD DATE:  25 September 2012

		DOCKET NUMBER:  AR20120004891 


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 his reentry eligibility (RE) code be changed so that he may be eligible to enlist in the U.S. Army Reserve (USAR).

2.  The applicant states he was discharged on 21 August 1994 and he was never informed he would not be able to reenter the military.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 3 September 1987 for a period of 
4 years.  He immediately reenlisted on 22 August 1991 for a period of 3 years.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist on 3 November 1989.

4.  On 11 July 1994, he enlisted in the USAR for the Dual Component Enlistment Option for a period of 3 years, 11 months, and 29 days.

5.  On 21 August 1994, he was released from active duty in the rank of specialist. He had completed 6 years, 11 months, and 19 days of active service that was characterized as honorable.  His DD Form 214 notes he received involuntary separation pay.  He was assigned an RE code of "3."

6.  On 21 March 1997, he was discharged from the USAR due to unsatisfactory participation.

7.  Army Regulations, then in effect, provided that prior to discharge or release from active duty individuals were assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provided eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. 

	a.  An RE-1 applied to persons completing an initial term of active service who were fully qualified for enlistment when last separated.  

	b.  An RE-3 applied persons who were not qualified for continued
Army service, but the disqualification was waivable.  These individuals were ineligible for enlistment unless a waiver was granted.

8.  Army Regulation 601-280 (Total Army Retention Program), then in effect, prescribed the criteria for the Total Army Retention Program.  For those Soldiers serving in the Active Army, it outlined procedures for immediate reenlistment or extension of enlistment.  

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

	b.  Paragraph 2-22 showed the retention control point (RCP) for a specialist was 8 years.  Soldiers in pay grade E-4 who had attained official Department of the Army (DA) or local order-of-merit promotion list status would be considered for reenlistment under the criteria of the rank to which they were to be promoted.

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

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

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence he attained an official DA or local order-of-merit promotion list status prior to release.  It is reasonable to conclude his unit would not have involuntarily released him with full separation pay if he had been in a promotable status.  

2.  The available evidence shows the applicant had already completed 6 years, 11 months, and 19 days of active service and he was not in a promotable status; therefore, his RCP was 8 years.  He was involuntarily released from active duty at the expiration of his term of service because he could not reenlist for the minimum period of 2 years without exceeding his RCP. 

3.  At the time of release from active duty he was not eligible for immediate reenlistment without a waiver.  There is no evidence a waiver was requested from HRC.  Therefore, he was correctly assigned an RE code of "3." 

4.  There is an insufficient basis to change a correctly assigned RE code in this case.

5.  He had enlisted in the USAR but he was discharged due to unsatisfactory participation on 21 March 1997.

6.  The applicant is advised that although his RE code of "3" was properly assigned this does not mean that 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)                                         AR20120004891



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ABCMR Record of Proceedings (cont)                                         AR20120004891



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