MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR1999028464

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols 		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 eligibility code be changed and his discharge upgraded.  In effect, he is requesting retirement from the Army.

The applicant states that he made mistakes and paid for them.  His discharge was wrong.  His commander and first sergeant were racist.

COUNSEL CONTENDS:  Counsel states that the applicant’s 4th award of the Army Good Conduct Medal and the numerous letters in his file attests to his outstanding conduct.  His commanding officer also stated that he reviewed the applicant’s file and supported his request that the bar to reenlistment be lifted.  Counsel stated that the applicant was unjustly punished twice for the same incident.  The applicant was an excellent solider barring the one incident cited in the bar to reenlistment, and the applicant should have been given the opportunity to complete 20 years of service and retired.  Counsel requests that the Board resolve any doubt in the applicant’s favor.  (COPY OF COUNSEL’S REMARKS ARE ATTACHED).

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 was inducted into the Army on 6 March 1968, completed infantry and airborne training, and in April 1969 was assigned to a unit in Korea.  He completed his tour and returned to the United States at Fort Lewis, Washington, where he was released from active duty in the grade of E-4 on 25 February 1970.
The applicant reenlisted in the Army for 6 years on 10 March 1970 and remained on continuous active duty until his discharge.  He served in Vietnam and had four tours of duty in Germany, in addition to assignments at Fort Sill, Oklahoma and Fort Ord, California.  He completed the basic NCO course, and was awarded the Army Commendation Medal, the Vietnam Service Medal, the Armed Forces Expeditionary Medal, and four awards of the Good Conduct Medal, among others.  He was promoted to Staff Sergeant in April 1978, reduced to Sergeant in November of that year, and again promoted to Staff Sergeant in October of 1979.

On 3 April 1984 the applicant was notified by the Army Enlisted Records and Evaluation Center that a DA selection board determined that he was barred from reenlistment.  The basis for this bar was the applicant’s record of one summary court-martial in 1969, and five nonjudicial punishment actions, the latest in November 1978.

On 4 September 1984 the applicant appealed the bar to reenlistment, stating that the summary court-martial conviction and two of the nonjudicial punishments were for fighting with other service members.  The other three nonjudicial punishments were for sleeping on guard duty, dereliction of duty, and failure to go to his place of duty.  He stated that these mistakes were early in his career, and he had since learned from them, striving to become a well disciplined and hard working NCO.  Since 1978 he was reclassified from his infantry MOS and has shown that he was capable of performing.  His evaluation reports have demonstrated his progress.  He received support from present and former officers and NCO’s, to include his present company commander and first sergeant, all of the statements of support prepared after he received his bar to reenlistment.  He enclosed with his appeal numerous letters of commendation and appreciation, a certificate of achievement, a copy of a certificate awarding him the Army Commendation Medal, etc.  He stated that he admitted that he had had an adjustment problem; however, he had been punished for his errors and has corrected his ways.  He stated that it was unjust, now that he had 16 years of service, to dredge up his past mistakes and use them again to deny him the opportunity to continue his Army career.  During the past six years he has earned the right to retain his position as an Army NCO.   He requested that the views of his immediate superiors be taken into account.

Attached to the applicant’s appeal were the various letters of support, commendation, appreciation, etc.,  from officers and NCO’s as cited by the applicant.  He also included copies of his evaluation reports.

The applicant’s commanding officer supported and endorsed his request, stating that the applicant had performed admirably in all his functions, and he should be retained.  The applicant’s battalion commander also recommended that the applicant be retained, stating that the applicant was dedicated, enthusiastic, and loyal to his unit; and his conduct on and off duty warranted favorable consideration of his request.  The commanding general of his support command also supported his request, stating that the applicant had potential and was capable of being a productive NCO.  The VII Corps commander, however, recommended disapproval of his request, stating that the applicant’s performance, leadership qualities, and maturity, were not that expected of an NCO with his years of service.

On 4 February 1985 the Military Personnel Center notified the VII Corps commander that the applicant’s appeal was disapproved, stating that all his incidents of misconduct reflected a disregard for authority, responsibility, and the standards of conduct expected of a soldier.  That agency also stated that the qualify of the applicant’s performance as reflected in his evaluation reports was sporadic throughout his career, and that six of the eight reports since his last promotion to Staff Sergeant were below the average of a soldier of his rank at the time of receipt.  That agency stated that the applicant would be separated on    his ETS.      

The applicant was discharged on 24 July 1985 at Fort Jackson, South Carolina.  His character of service was honorable, and his reenlistment code was RE 3, 3C. That code was changed to RE 4 on 21 August 1985.  He had over 17 years of service.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance the quality of the career enlisted force, (2) selectively retain the best qualified soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive soldiers, and (4) encourage soldiers to maintain their eligibility for further service.  Soldiers whose continued service is not warranted receive a QMP bar to reenlistment.  A soldier who has completed 18 years or more of service on the effective date of the DA bar to reenlistment memorandum may be extended to reach retirement eligibility.     

Qualitative screening for soldiers in the rank of SSG (pay grade E-6) through 1SG/MSG (pay grade E-8) is accomplished by regularly scheduled HQDA promotion selection boards.  Bars to reenlistment for soldiers identified by the selection boards and approved by the DA Deputy Chief of Staff for Personnel will be imposed as directed by the commander of the Enlisted Records and Evaluation Center (USAEREC).  The soldier is notified and may appeal his bar to reenlistment.  Appeals will be acted upon by the next standby advisory board (STAB), normally conducted in conjunction with centralized enlisted selection boards.  The soldier will be notified on the results of the his appeal.

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.

Paragraph 3-22 of that regulation identifies the reentry eligibility (RE) codes.  Those codes are used for administrative purposes only and used for identification of an enlistment processing procedure.  The code RE-4 applies to persons separated from his last period of service with a non-waivable disqualification.  This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years of service.  

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 24 July 1985, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 July 1988.

The application is dated 12 April 1999 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

___sk___  ___rvo___  ___le___  CONCUR WITH DETERMINATION

		Karl F. Schneider
		Director, Army Review Boards Agency 

INDEX

CASE ID	AR1999028464	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000405	
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.  338	142.00	
2.	110.00	
3.	100.06	
4.	136.00	
5.		
6.