MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:         28 January 1999                  
	DOCKET NUMBER: AC98-12400
				 AR1999017700

	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. Loren G. Harrell		Director	
	Mr. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Luther Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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:  Correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.  He states he was given an RE-4 code but was advised he would receive less than an RE-4, and that for 10 years he was denied reentry into the service until he received a waiver of the code and was enlisted into the Michigan Army National Guard.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He enlisted and served in the Regular Army from 2 May 1985 to 5 August 1988.  He was honorably discharged in pay grade E-3 prior to the expiration of his term of service.  (He had 3 years of prior honorable Regular Army enlisted service from 1981 to 1984.)

During this service he received counselings concerning his conduct, and nonjudicial punishment under Article 15, UCMJ on two occasions for misconduct, including a reduction in grade from E-4 to E-3.

On 19 July 1988 he received a bar to reenlistment imposed by his chain of command for misconduct, nonjudicial punishment, recalcitrant attitude, dereliction of duties, and for causing trouble in the civilian community.  He requested a voluntary discharge for 5 August 1988.  He stated at the time that he perceived he was unable to overcome the bar, and among other things, that he understood that he would not be permitted to reenlist at a later date.

He was issued an honorable discharge and assigned code RE-4.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted. Examples of rationale for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.

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 (RA) and the US 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, including RA RE codes.

Army Regulation 601-280, in effect at the time, specified that code RE-4 would be assigned for individuals discharged immediately and prior to the expiration of their term of service, based on their request and stated inability to overcome a bar to reenlistment.

Code RE-4 applies to persons separated from their last period of service with a non-waivable disqualification, including those separated with a Departmental bar to reenlistment in effect, and who are ineligible for enlistment.  On 17 October 1990 the requirement to assign code RE-4 for separations based on unit bars to reenlistment was removed and replaced by code RE-3, a waivable disqualification.

The assigned RE-4 code in this case was and still is appropriate, and there is no basis for removal of the code or of the disqualification which established the basis for the code.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 August 1988, the date of discharge and assignment of code RE-4.  The time for the applicant to file a request for correction of any error or injustice expired on 5 August 1991.

The application is dated 26 February 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

LS______  RWG ___  CLG____  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AC98-12400/AR1999017700	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 January 28	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03	
2.		
3.		
4.		
5.		
6.