IN THE CASE OF:	  

		BOARD DATE:  13 December 2012

		DOCKET NUMBER:  AR20120008714 


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 that his reenlistment eligibility (RE) code be changed from a "3" to a "1."

2.  The applicant states he was told the only way he could be released from active duty was to sign a DA Form 4991-R (Declination of Continued Service Statement (DCSS)) and if he later wanted to enlist he would only have to wait 90 days.  He did not fully understand the process and took the advice of his noncommissioned officer (NCO) and signed the form.  When he later attempted to enlist, he was rejected because of the RE-3.  He was told at that time that no one should have required him to sign the form and he should have had an RE-1.

3.  The applicant provides a copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DA Form 4991-R, dated 24 February 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U.S. Army Reserve (USAR) on 11 February 2003, served on active duty for 4 months and 13 days and as an active member of a Troop Program Unit for 1 year, 11 months, and 27 days.  He was honorably discharged for immediate enlistment in the Regular Army.

2.  On 21 June 2005, he enlisted in the Regular Army for 3 years, completed training, and was awarded the military occupational specialty 13P (Multiple Launch Rocket System Operations/Fire Direction Specialist).  
3.  The applicant served in Iraq from 27 November 2007 through 6 February 2009 for a period of 1 year, 2 months, and 11 days.  A review of his records show he served with Battery C, 2nd Battalion, 44th Air Defense Artillery, Multi-National Division-Baghdad, from 27 November 2007 to 13 April 2008, and Company A, Division Special Troops Battalion, Multi-National Division-Baghdad from 14 April 2008 to 6 February 2009.

4.  At some undocumented point, his enlistment was extended apparently under the Stop Loss Program.  The available record contains no documents related to this action although his DD Form 214 shows he was retained in the service for the convenience of the government for 344 days under Title10, U.S. Code (USC), Section 12305.

5.  The DA Form 4991-R states that as a result of an assignment to Fort Sill, Ok., as of 21 October 2008, the applicant had incurred a remaining service requirement under the provisions of Army Regulation 601-280 (Army Retention Program), chapter 4.  His expiration term of service (ETS) date is shown as 
30 May 2009.  This form states "…has been advised that in order to comply with the operational commitment, he/she must have a minimum of 24 months remaining to ETS as of 20090610."

6.  The form also states he was prohibited to apply for reentry into the Active Army for a period of at least 93 days if separated at normal ETS, and at least 2 years if voluntarily separated before ETS under paragraph 16-5 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

7.  The applicant was released from active duty on 30 May 2009. 

8.  His DD Form 214 provides the following:

* service on active duty for 3 years, 11 months, and 10 days with no lost time
* transfer to the USAR Control Group (Reinforcement) 
* he was retained on active duty for 344 days beyond his original ETS date in accordance with Title10, USC, Section 12305
* he was not eligible for separation pay because he signed a DCSS
* separation under Army Regulation 635-200, chapter 4
* a Separation Program Designator (SPD) of "MBK"
* an RE Code of "3"  
* the narrative reason for separation shows completion of required active service

9.  On 26 May 2010, the applicant enlisted in the Texas Army National Guard (TXARNG) for 2 years.  His USAR discharge orders, dated 21 June 2012, state he was held beyond normal discharge date through no fault of his own.

10.  Title 10, USC, Section 12305 (Authority of President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation) states that "Notwithstanding any other provision of law, during any period members of a Reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States. 

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve for enlistment and reenlistment.  Included in this regulation is the SPD/RE Code Cross-Reference Table that indicates an SPD of MBK requires an RE code of 3.

12.  Army Regulation 601-280 states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an RE code of 3 can normally reenlist but will probably require a waiver to be processed.  

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR 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.  Because his iPERMS record does not include any real information relating to his deployment and/or his involuntary extension orders it is impossible to determine if the DCSS was required and the presumption of regularity must be applied.


2.  The applicant was released from active duty at his revised ETS date of 
30 May 2009.  In order to be released with an indication that he had a reassignment pending, he had to sign a DCSS.  By signing the DCSS, he declined to reenlist and the regulation allowed for the issuance of an RE-3.  

3.  A code of RE-3 is not a total bar to enlistment but a temporary bar of 93 days. However, enlistment would be authorized based on the needs of the Army.  Because he signed the form, from a regulatory point of view there is no error in RE code he was issued at the time of his discharge.

4.  Further, the applicant has not provided any evidence he has been denied reentry into the Regular Army and he did enlist in the TXARNG with no apparent delay or difficulty in acceptance.

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)                                         AR20120008714



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ABCMR Record of Proceedings (cont)                                         AR20120008714



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