MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             4 August 1999    
	DOCKET NUMBER:   AR1999023724

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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:  That his reenlistment code of RE 3C on his 9 November 1988 DD Form 214 be changed to RE 1 or 1A.

He states that he should have been allowed to reenlist and that he does not know why he received the RE 3C reenlistment code.  He wants to enlist in the Marine Corps but his request to do so was disapproved because of his RE code.

He states that he received an honorable discharge from the Army and never committed any crime; however, he was young, immature, and inexperienced, and was more concerned with having a good time than being a soldier.  He received nonjudicial punishment during training, and received disciplinary action in Germany because of his poor work performance.  

After his discharge he went to college, and also enlisted in the Texas National Guard and attained the grade of E-4.  He continued his education and completed a basic extended police academy.  He is now working as a tribal officer on an Indian reservation.      

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:

The applicant entered on active duty on 12 November 1986 and was released from active duty in the grade of E-2, with a date of rank of 1 September 1988, on                    9 November 1988, at the expiration of his term of service.  He had 1 year, 11 months, and 28 days of service.  His reenlistment code on his DD Form 214 is “3C”.

On 26 April 1990 the applicant enlisted in the Texas Army National Guard for                  5 years.  The enlistment documents show that he requested a waiver of his RE code, and that he had received nonjudicial punishment in October of 1988 for fighting, and was reduced from pay grade E-3 to pay grade E-2.

In a 15 June 1993 document requesting that the applicant be discharged, an officer of the California Army National Guard stated that the applicant had accumulated over nine periods of AWOL during a year.  He was an interstate transfer from the Texas Army National Guard in June 1992 and was a disciplinary problem with that organization.  He started going AWOL again, and that officer recommended his discharge.  The applicant was reduced to E-3 for inefficiency (AWOL) on 24 June 1993 and discharged from the California Army National Guard on 8 July 1993, under honorable conditions (general).  His RE code on the National Guard Bureau report of separation is “3”.
Army Regulation 601-210, then in effect, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the Army Reserve.  Table 3-6 lists the Armed Forces reenlistment codes.  RE-3C applies to persons who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements of AR 601-280, chapter 2, or who have been denied reenlistment under the Qualitative Retention Process under AR 600-200, chapter 4.  Those persons are ineligible for enlistment unless a waiver is granted. 

Army Regulation 601-280, then in effect, prescribes eligibility criteria for reenlistment, and chapter 2 provides the basic qualifications for reenlistment.  Paragraph 2-22 states in pertinent part that soldiers in grade E-2 and below, regardless of years of service completed, are not authorized reenlistment.  No grade waiver considered.

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 9 November 1988, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 9 November 1991.

The application is dated 14 October 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

__fkm___  __inw___  __gdp___  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1999023724	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990804	
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. 142.00		
2. 110.00		
3.		
4.		
5.		
6.