BOARD DATE: 7 January 2010 DOCKET NUMBER: AR20090012692 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 the Reenlistment Eligibility (RE) code of "3" on his 24 September 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to an RE code of "1." 2. The applicant states, in effect, that he received an honorable discharge after completing his enlistment. The problem with his RE code was discovered when he was trying to go back on active duty. 3. The applicant provides a copy of his DD Form 214 and separation 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. The applicant’s record shows he enlisted in the Regular Army on 25 September 2001. The applicant was honorably released from active duty in the grade of E-2 on 24 September 2004. 3. The applicant's DD Form 214 shows he was credited with completing 3 years of active federal service. Item 25 shows the separation authority as Chapter 4, Army Regulation 635-200. Item 26 lists his separation code as "LBK" and item 27 shows his RE code as "3." 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4 of this regulation provides, in pertinent part, that a Soldier will be separated upon the expiration of enlistment or the fulfillment of service obligation. A Soldier being separated upon expiration of enlistment or fulfillment of the service obligation will be awarded a character of service of honorable, unless the Soldier is in an entry-level status and the service is uncharacterized. Two codes are used for Soldiers released from active duty for completion of required active service under the provisions of chapter 4 of Army Regulation 635-200. 5. Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The primary purpose of SPD codes is to provide statistical accounting of reasons for separation. They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data. 6. Army Regulation 635-5-1 provides that the SPD code of "LBK" is the correct code for RA Soldiers released from active duty for completion of required active service when they are ineligible for, barred from, or otherwise denied reenlistment at the completion of their enlistment. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers and shows the SPD code and corresponding RE code. The SPD code of "LBK" has a corresponding RE code of "3." This RE applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable. 7. Army Regulation 601-280 (Army Retention Program) provides guidelines for immediate reenlistment in the Army. This regulation states, in pertinent part, that an E-1 through E-3 may not exceed 3 years and 29 days of total active service before expiration of contracted service (reenlistment or extension). DISCUSSION AND CONCLUSIONS: 1. Evidence of record shows the applicant had 3 years of active service at the time of his separation from the Army. Based upon the grade requirement for reenlistment, he was ineligible to reenlist. Therefore, the RE code of 3 that is listed on his DD Form 214 is correct. 2. Although the Army Board for Correction of Military Records has denied a change in his RE code, this does not mean the applicant has been completely denied the opportunity to reenlist. Recruiting personnel have the responsibility for initially determining whether an individual meets the current enlistment criteria. Recruiting personnel may process a request for waiver. Therefore, it is suggested that the applicant visit his local recruiting station to determine if he should apply for a waiver. 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) AR20090012692 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090012692 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1