MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:          16 April 2002                  
	DOCKET NUMBER:  AR2001062330

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to show his Reentry (RE) code was RE1, and his Separation Program Designator (SPD) was MBK.

APPLICANT STATES:  His Expiration of Term of Service (ETS) was changed to make up his lost time.  Therefore, he did not have any lost time when he was discharged.  He also cites the regulation which provides the criteria for immediate reenlistment, which states that if a soldier is promoted after being charged with lost time, the soldier is eligible to reenlist without a waiver.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 14 January 1998, and was awarded the military occupational specialty of food service specialist.

On 29 December 1999 the applicant’s duty status changed from present for duty to absent without leave.  On 10 January 2000 his duty status changed from absent without leave to present for duty.  On 1 October 2000 he was promoted to pay grade E-4.

He was honorably released from active duty on 25 January 2001.  The DD Form 214 he was issued shows in Item 29, Dates of time lost during this period, that the period 29 December 1999 through 9 January 2000 was lost time; shows in Item 26, Separation code, that the applicant was assigned an SPD of LBK; and shows in Item 27, Reentry code, that the applicant was assigned an RE code of RE-3.

Title 10 US Code, Section 972, states that an enlisted member of an Armed Force who is absent from his or her organization, station, or duty for more than one day is liable, after his or her return to duty, to serve a period that, when added to the period that he served before his absence from duty, amounts to the term for which enlisted or inducted.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 

and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, persons who had lost time during their last enlistment, and persons discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.

Army Regulation 635-5-1 shows that the SPD MBK is assigned to Regular Army enlisted soldiers who are eligible to reenlist but who are released from active duty on completion of their enlistment.  SPD LBK is assigned to Regular Army enlisted soldiers who are ineligible for, barred from, or otherwise denied reenlistment who are separated upon completion of enlistment.

Army Regulation 601-280 prescribes the requirements for immediate reenlistment in the Regular Army.  Paragraph 2-19 of this regulation states that soldiers who have lost time require a waiver to reenlist, unless a waiver was already approved after the period of lost time to promote the soldier.  Then no waiver is necessary.

Army Regulation 600-200 prescribes the criteria for promoting enlisted soldiers.  Paragraph 7-6g states that being punished under Article 15, UCMJ, does not result in a nonpromotable status.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant had lost time which he was required to make up by law and regulation.  The fact that he made up the lost time does not void the lost time.

2.  Since the applicant did not require a waiver to be promoted to pay grade E-4, by regulation he did in fact require a waiver to reenlist.  Therefore, he was ineligible to reenlist at the time of his separation.

3.  As such, the applicant was properly assigned both the RE-3 and MBK codes.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___mmd _  ___jtm __  ___inw__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001062330	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020416	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.