IN THE CASE OF:	  

		BOARD DATE:	  6 March 2014

		DOCKET NUMBER:  AR20130011234 


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 correction of Item 27 (Reentry (RE) Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "1" instead of "3."

2.  The applicant states:

* his record is unjust and he has continued to serve honorably in the U.S. Army Reserve (USAR)
* he showed superior character while awaiting and after his court-martial
* he has shown superior character while in the USAR and predicts he will be promoted to E-5 again
* he was honorably discharged and although he served time in confinement, his RE code does not appropriately reflect his usefulness to the Armed Forces
* he was a valuable asset while on active duty, a valuable asset to the USAR, and knows he will be a valuable asset when he returns to active duty

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 January 2005 for a 4-year period.

2.  A DA Form 1695 (Oath of Extension of Enlistment), dated 9 February 2009, shows that on 27 June 2006 the applicant voluntarily extended his enlistment to 
4 years, 6 months, and 17 weeks due to pending personnel action.

3.  A DA Form 1695, dated 23 December 2008, shows a 2-month extension request was submitted; however, the applicant did not authenticate the form.  The form shows the remark, "Soldier refuses to sign UCMJ [Uniform Code of Military Justice].”

4.  General Court-Martial Order Number 28, issued by Headquarters, Fort Lewis, Fort Lewis, WA, dated 29 October 2009, shows the applicant pled and was found guilty of:

* on or about 26 October 2008, unlawfully breaking and entering the barracks room of another Soldier with the intent to commit larceny
* on or about 26 October 2008, stealing a PlayStation 3 gaming system, an
Xbox gaming system, 6 controllers, 9 video games, and a compact disc case containing various music compact discs, digital video discs, and video games having an aggregate value of more than $500

5.  The applicant was sentenced to reduction from the rank/grade of sergeant/E-5 to private/E-2 and 6 months of confinement.  However, only so much of the sentence as provided for reduction to E-2 and 5 months of confinement was approved.

6.  On 16 April 2010, the applicant was honorably released from active duty (REFRAD) and transferred to the USAR Control Group (Reinforcement).  His DD Form 214 shows in:

* Item 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations Personnel Separations), Chap[ter] 4
* Item 26 (Separation Code) – MBK
* Item 27 (Reentry Code) – 3
* Item 28 (Narrative Reason for Separation) – Completion of Required Active Service
* Item 29 (Dates of Time Lost During This Period) – 26 August 2009 through 30 December 2009

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states prior to discharge or REFRAD, individuals will be assigned RE codes based on their service records or the reason for discharge.

8.  Army Regulation 635-5-1 (Separation Program Designator (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.

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

     a.   RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement to change RE code exists to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction;

     b.  an RE-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; 

     c.  an RE-3 applies to Soldiers who are considered not fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable;

     d.  paragraph 3-23b states Soldiers who received an RE-3 are fully eligible for Reserve Component enlistment if their last discharge was from the RA; if the DD Form 214 is annotated with the separation authority of Army Regulation 635-200, chapter 4; and if they received an SPD of [among others] MBK;

     e.  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-3 is to be used when the Soldier’s record indicates the Soldier:

           (1)  Is ineligible for or otherwise denied immediate reenlistment;

           (2)  Has a Declination of Continued Service Statement (DCSS);

           (3)  Has grade and service criteria in Army Regulation 601-210, paragraph 3-10;

           (4)  Has time lost due to being absent without leave or confinement; or
          (5)  Has an Immediate Reenlistment Prohibition Code of 9T.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was REFRAD on 16 April 2010.  The SPD of MBK is the correct designation for Soldiers REFRAD and transferred to the USAR.  The SPD MBK can generate either an RE-1 or an RE-3 code depending on other factors.

2.  He was court-martialed and sentenced to a period of confinement.  Therefore, he was properly furnished an RE-3 code.  

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

4.  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)                                         AR20130011234



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ABCMR Record of Proceedings (cont)                                         AR20130011234



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