RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 November 2003                   
	DOCKET NUMBER:   AR2003087945

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

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his reentry (RE) code of RE-3 on his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed to RE-1.

2.  The applicant states that his discharge is honorable.

3.  The applicant provides a copy of his DD Form 214 in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error which occurred on 15 April 1998.  The application submitted in this case is dated 16 October 2002. 

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  Prior to the period of enlistment under review, the applicant served honorably in the Regular Army (RA) from 6 March 1991-15 December 1993 and from 16 December 1993-15 April 1996.  On 16 April 1996, he reenlisted in the RA for a period of 2 years, in his previous military occupational specialty (MOS) 67T (Helicopter Repairer) and in pay grade E-4, which is the highest grade that he achieved. 

4.  On 15 July 1997, the applicant was notified that he was being placed on orders for an overseas assignment to the Republic of Korea and that, in order to complete assignment, he would be required to extend his enlistment of 16 April 1996.  On 1 October 1997, he completed a DA Form 4991-R (Declination of Continued Service Statement) thereby refusing to extend his enlistment and refusing the overseas assignment to Korea.  He acknowledged that he had been counseled concerning his refusal to extend his enlistment to comply with the commitment.  He acknowledged that he understood the effects his refusal would have on his Army career if he refused the oversea assignment.  He initialed a statement indicating that he understood that he was prohibited from consideration for promotion or advanced schooling; he was prohibited from applying 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; he was prohibited from reenlistment or extension of enlistment; and that he must obtain a grade determination from Headquarters, Department of the Army, if approved for reentry into the Army.

5.  On 15 April 1998, the applicant was honorably released from active duty under the provisions of chapter 4, Army Regulation 635-200 upon completion of his required active service and transferred the United States Army Reserve (USAR) Control Group, St. Louis, Missouri.  He had completed a total of 7 years, 1 month, and 10 days of creditable active military service.  He was assigned a separation code of JBK and an RE code of RE-3.

6.  On 9 February 1999, the applicant was honorably discharged from the USAR Control Group, St. Louis.

7.  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 enlisting and processing into the RA and the eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes and RA RE codes. 

8.  A separation code of "JBK" applies to RA Soldiers ineligible for, barred from, or otherwise denied reenlistment who are separated on completion of enlistment.

9.  RE-3 applies to persons not qualified for continued Army service; however, the disqualification is waivable.  Soldiers who execute a Declination of Continued Service Statement are given RE codes of RE-3.  Local recruiting personnel have the responsibility of determining whether an individual meets the current enlistment criteria and of processing requests for waiver, if appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was assigned a separation code of JBK and an RE code of 
RE-3 at the time of separation because he was not eligible to reenlist without a waiver due to the Declination of Continued Service Statement that he signed.  

2.  There appears to be no basis for removal or waiver of the disqualification, which established the basis for the applicant’s separation and RE codes.  Both codes are still appropriate.

3.  If the applicant desires to reenlist, he should contact his local recruiter to determine his eligibility to reenlist.  Recruiting personnel can best advise him as to the needs of the Army at the current time.  They are also required to process waivers of RE codes, if appropriate.

4.  Records show the applicant should have discovered the alleged error now under consideration on 15 April 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 April 2001.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jhl___  __lds___  __rld___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089745	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.