MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 MAY 2002
	DOCKET NUMBER:   AR2002069714

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Thomas Lanyi		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 reentry (RE) code of “3” on his     DD Form 214 be corrected in order for him to return to active duty.

The applicant states that he completed eight years of service, was not medically discharged, nor was he overweight at the time of his discharge.  He had no disciplinary action coincident with his discharge.  The reentry code of “3” is incorrect.  

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 29 November 1983 and remained on continuous active duty until his discharge in 1992.  He has been assigned to numerous locations, to include Fort Jackson, South Carolina, Fort Benning, Georgia, Fort Bragg, North Carolina, and Korea.  He completed the Primary Development Leadership Course and has been awarded the Army Commendation Medal, the Army Achievement Medal, and the Army Good Conduct Medal, among other awards.  He has received nonjudicial punishment under Article 15, UCMJ, on two occasions, and received a letter of reprimand in November 1991.  He attained the rank of SP4 (Specialist Four), pay grade E-4.

The applicant was discharged on 1 January 1992 at the expiration of his term of service (ETS).  He had 8 years, 1 month, and 3 days of service.  He received separation pay in the amount of $6,128.28.  The applicant’s DD Form 214 shows a separation code of “JBK” and a reentry code of “3.”

Army Regulation 601-280 prescribes procedures for immediate reenlistment of soldiers serving in the active Army, and states in effect that a soldier with the rank of SP4 with more than 8 years and 29 days of service prior to his ETS will not be allowed to reenlist.

Army Regulation 635-5-1 prescribes the authorities, reasons for separating soldiers from active duty, and the separation codes to be entered on the DD Form 214.  That regulation indicates that the separation code, “JBK” applies to a soldier discharged on his ETS who is ineligible for, barred from, or otherwise denied reenlistment.

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.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  The code RE 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation.    
 
That regulation also states in pertinent part that prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  Recruiting personnel are authorized to process requests for waiver. 

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, nor has the applicant provided any, to indicate that his reentry code was in error or unjust and as such there is no basis to correct his reentry code on his DD Form 214.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 1 January 1992, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 1 January 1995.

The application is dated 21 February 2002 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.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JLP___  __BJE __  __TL____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002069714	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020521	
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	
4.		
5.		
6.