MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 August 1999  
	DOCKET NUMBER:   AR1999024411

	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 reentry code of “4” be changed on his        DD Form 214 to allow him to enlist in the Army Reserve.   

The applicant states that he recently discovered that his reentry code does not allow his enlistment in the Army Reserve, and requests that the code be changed or that he receive a waiver in order to enlist.

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 enlisted in the Regular Army for four years on 23 April 1985 and remained on continuous active duty until his discharge in 1993, attaining the rank of Sergeant.  He served in various locations throughout the world, to include Germany, Saudi Arabia, and Fort Hood, Texas.  He has awarded the Army Achievement medal with 2 oak leaf clusters, the Good Conduct Medal              (2nd award), and the Southwest Asia Service Medal with 3 bronze service stars, among his other awards.

His record also shows that he received nonjudicial punishment, under Article 15, UCMJ, on two occasions, once in Germany for disrespect to an NCO, and for two counts of willfully disobeying a lawful order; and once at Fort Hood, Texas, for leaving his appointed place of duty.  His record shows that he received two poor NCO evaluation reports while assigned to two different units at Fort Hood.

On 10 July 1993 the applicant was notified that a DA selection board had determined that he was to be barred from reenlistment under the DA qualitative management program (QMP).

On 5 August 1993 the applicant was counseled as to his options under the DA imposed bar to reenlistment under the QMP.  The applicant thereupon signed a statement of option, in which he stated that he would not submit an appeal, and that he understood that he would be separated within 90 days of the option statement under the provisions of Army Regulation 635-200, paragraph 16-8.

On 27 September 1993 the applicant signed a DA Form 7154-R (Agreement to Joint the Ready Reserve).  An entry at the bottom of that form, signed by a recruiting Sergeant Major, indicates that the applicant was not qualified for enlistment in the Reserve component.

The applicant was discharged at Fort Hood, on 27 October 1993, under the provisions of Army Regulation 635-200, paragraph 16-8, because of a reduction in force.  His separation code is listed as “JCC”, and his reentry code as “4”, on his  DD Form 214.  He had 8 years, 9 months, and 11 days of active service.  He received separation pay in the amount of $7,489.13.

Army Regulation 635-200 sets policies, standards, and procedures for the administrative separation of enlisted soldiers.  Paragraph 16-8 provides for the early separation due to a reduction in force, strength limitations, or budgetary constraints, either voluntary or involuntary early separation.  The Total Army Personnel Command (PERSCOM) will implement the program by issuing separation instructions pertaining to a specific class or category of soldiers. 

Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating soldiers from active duty, and the SPD codes to be entered on the   DD Form 214.  A soldier separated under Army Regulation 635-200, paragraph 16-8 because of a reduction in force will have a SPD code of “JCC” entered on his DD Form 214.  

Army Regulation 601-210 governs eligibility criteria, policies, and procedures for enlistment of persons into the Regular Army and the Army Reserve.  Table 3-6 of that regulation lists RE codes, and states in pertinent part, that a person separated from a last period of service with a nonwaivable disqualification (to include persons being separated with a DA bar to reenlistment) will have an      RE code of “4” entered on the DD Form 214.  A person separated with a DA bar to reenlistment is ineligible for enlistment.  

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 27 October 1993, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 27 October 1996.

The application is dated 9 September 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	AR1999024411	
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. 100.06		
3.		
4.		
5.		
6.