MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           25 OCTOBER 2001                   
	DOCKET NUMBER:   AR2001059805

	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. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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:  In effect, that his records be corrected to permit him to reenlist.  He states, in effect, that he needs his “1 yr. barred reenlistment” which he apparently equates to his “reenlistment code” changed.  He notes that he is an “honorably discharged veteran” who would like to reenlist in the Army.  He submits no evidence in support of his request.

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 in the USAR (U.S. Army Reserve) for a period of 6 years on 
5 January 1984.  His ETS (expiration term of service) date was established as 
4 January 1990.

In August 1989 he was notified, via certified letter (which he acknowledged), that he had 10 unexcused absences from scheduled unit training assemblies during 1989.  He was informed that Army Regulation 135-91 provided that soldiers who accumulated nine unexcused absences in a one-year period would be transferred to the IRR (Individual Ready Reserve) for the remainder of their statutory service obligation or discharged if they were within 90 days of their scheduled ETS date.

On 24 August 1989 the applicant’s unit commander excused one of the 10 absences.  As a result of the applicant’s remaining unexcused absences he was barred from reenlisting.  The local bar to reenlistment was forwarded to the applicant via certified mail and he acknowledged delivery on 12 September 1989. 

On 24 September 1989 the applicant was transferred from the 224th Chemical Company in Jeffersonville, Indiana to the United States Army Reserve Control Group (Annual Training), one of the elements of the IRR, as a result of his unsatisfactory participation.

Records available to the Board do not contain any orders indicating the applicant was discharged from the USAR in January 1990 upon his ETS nor ever assigned a reenlistment code.  The applicant, however, did indicate in his application that he had been honorably discharged and listed his discharge date as 4 January 1990, his scheduled ETS date.

Army Regulation 601-210, which establishes the policies and provisions for enlistment in the RA (Regular Army) or USAR, notes, among other qualification requirements, that if a person was last discharged from an active duty status, the reenlistment eligibility (RE) code will be obtained to determine eligibility for enlistment in the RA (Regular Army) or USAR.  It also states that if the last period of service was in a Reserve Component then qualifications for enlistment will be based on that separation or discharge.

Army Regulation 601-210 also provides, that a waiver is required for any applicant who has been transferred to the IRR, or other services control group for being an unsatisfactory participant and is not currently serving satisfactorily in a troop unit.  Waivers may be requested at any time.  Depending on the needs of the Army, waivers may not be considered even though the disqualification is waiveable.

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.

There is no evidence, and the applicant has not provided any, that his bar to reenlistment should be vacated.

He is, however, advised to contact his local recruiter to see if waiver applications are being considered for individuals who were previously transferred to the IRR as a result of his unsatisfactory participation and if he meets other enlistment qualifications. 

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 September 1989, the date he was transferred to the IRR.  The time for the applicant to file a request for correction of any error or injustice expired on 24 September 1992.

The application is dated 9 July 2001 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

__RJW__  __KAN __  __REB   _  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2001059805	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011025	
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.		
3.		
4.		
5.		
6.