IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120009755 


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 (RE) code be changed from "3" to "1."

2.  He states he was stationed in Italy and worked with the Transition Center Manager for a follow-on assignment.  He was told he had a good chance of getting Seoul, Korea, which was his preference out of the three locations he was given to choose from.  

3.  The applicant states as he came closer to reenlistment he began consultation with the retention office.  He was told that his previous three choices were already taken and he could reenlist for Fort Hood, TX in his military occupational specialty of 92G (Food Service Specialist).  

4.  He adds he made it clear to the retention office that if he could not get his choice in duty locations he would reenlist for the U.S. Army Reserve (USAR).  He claims he was threatened by retention personnel that if he did not reenlist for the Regular Army (RA), his RE code would be affected.  Despite the threats he reenlisted for the USAR and stayed in that component for the next 12 years.  

5.  The applicant argues that an RE code of 3 is wholly inconsistent with the nature and character of his RA service.  This code is also undeserved, unwarranted, and amounts to a miscarriage of justice.  




6.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Expiration Term of Service (ETS) orders

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 RA on 23 March 1992 and attained the rank of specialist/
E-4 in 1994.

3.  A review of his record shows he signed a DA Form 4991-R (Declination of Continued Service Statement (DCSS)) on 7 January 1998.  This form was also authenticated by a U.S. Army career counselor and the applicant's unit commander.  

   a.  This form shows his normal ETS date was 8 September 1998 and he was advised that in order to comply with the operational commitment he must have a minimum of 13 months remaining to ETS as of 9 July 1998.
   
   b.  He had 30 days from the date of notification to extend, reenlist or execute this statement.

	c.  Section A (Counseling by Military Personnel Division or PSB (Personnel Service Battalion) Advisor) of this form states, in part, he had been advised of the options available to acquire sufficient remaining service to satisfy the commitment, but he refused to take the necessary action to meet the length of service requirement.  He was advised that refusal to take action to comply with the operational commitment would have the following career affects:

* Placement in a nonpromotable status
* Prohibited from reenlistment or extension of enlistment
* Removal from promotion standing list
* Prohibited from applying for reentry into the Active Army for a period of at least 93 days if separated at normal ETS or at least 2 years if voluntarily separated before ETS

4.  On 13 May 1998, he enlisted in the USAR for 1 year, 3 months, and 22 days.  He also completed an Affiliation Bonus Addendum for the Selected Reserve Incentive Program.  

5.  On 6 September 1998, he was honorably released from active duty (REFRAD) at the completion of required active service and transferred to his Reserve unit to complete his service obligation, in the rank of specialist/E-4.

6.  His DD Form 214 shows in:

* Item 12c (Net Active Service This Period ) he had completed 
6 years, 5 months, and 14 days of active service  
* Item 25 (Separation Authority) the entry Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 4
* Item 26 (Separation Code) the entry "MBK"
* Item 27 (RE Code) the entry "3"

7.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, chapter 4, for a voluntary REFRAD carries an SPD of MBK.

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA, USAR, and the Army National Guard.  It provides the following:

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

   b.  an RE code of 3 applies to Soldiers who are considered not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable;
   
   c.  paragraph 3-23b states Soldiers who received an RE code of 3 are fully eligible for Reserve Component enlistment if their last discharge was from the RA; if the DD Form 214 is annotated with separation authority of Army Regulation 635-200, chapter 4; and if they received an SPD of [among others] MBK; and
   
   d.  the SPD/RE Code Cross-Reference Table indicates an SPD of MBK carries either an RE code of 1 or 3.  Note 6 states that an RE code of 3 is to be used when a Soldier’s record indicates, in part, they have a Declination of Continued Service Statement (DCSS).
      
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the RE code of 3, which he was assigned at the time of his ETS is unjust, undeserved, and unwarranted due to his character of service. 

2.  His records show he signed a DCSS on 7 January 1998.  The SPD/RE Code Cross-Reference Table indicates the SPD code of MBK will have an RE code of 3 assigned when a Soldier's record contains a DCSS.  As such, there is no error or injustice in either the SPD or RE codes he was assigned at the time of his release from the RA.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing RE code waivers.

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)                                         AR20120009755



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ABCMR Record of Proceedings (cont)                                         AR20120009755



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