MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 AUGUST 2002                  
	DOCKET NUMBER:   AR2002071675

	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. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg		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, the applicant requests that his                    15 September 1991 DD Form 214 be corrected to show his rank and grade as Specialist Four (SP4) and E-4, respectively, and that his reentry code of 3C be corrected in order for him to return to active duty.

He states that his microfiche (Official Military Personnel File) and his Personnel Qualification Record both show that his last rank was SP4.  His microfiche is unavailable to the Board.    

In a 24 June 2000 request to a Member of Congress the applicant stated that he needed his rank and reentry code corrected so that he could return to the Army or enlist in the Army Reserve.  He stated that the Army would not allow him to enlist in pay grade E-3 with 6 1/2 years of prior service.

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 Army for 3 years on 3 January 1985, completed training as an infantryman, and in April 1985 was assigned to an infantry battalion in Germany.  In June 1986 he returned to the United States and was assigned to Fort Hood, Texas.  The applicant’s Personnel Qualification Record – Part II (DA Form 2-1) shows that he was promoted to SP4 on 20 May 1987.
He reenlisted for 4 years in pay grade E-4 on 16 September 1987.  He served in Saudi Arabia from 10 October 1990 to 17 April 1991.

On 21 March 1991 the applicant was awarded the Combat Infantryman Badge.  His rank on the order effecting that award is PFC (Private First Class). 

The applicant’s Personnel Qualification Record, Part I, prepared on 20 August 1991 shows his rank as PFC, with a date of rank of 20 October 1990. 

Orders published by Headquarters III Corps and Fort Hood, dated 20 August 1991, show that he was reassigned to the Army transition point at Fort Hood, for transition processing and release from active duty.  His rank on those orders is shown as PFC.

The applicant applied for a Reserve identification card on 26 August 1991.  The application form, which he signed, shows his rank as PFC.

On 29 August 1991 the applicant completed a DA Form 4187 (Personnel Action) agreeing to serve in the Army Ready Reserve for a period of three years.  His grade on that form is shown as E-3.  

The applicant was released from active duty on the expiration of his term of service (ETS) 15 September 1991.  He had 6 years, 8 months, and 8 days of service.  His rank shown on his DD Form 214 is PFC E-3, with a date of rank of 20 October 1990.  He was awarded separation pay of $8,011.60.  His               DD Form 214 shows a reentry code of “3C.”

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, then in effect, 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 identifies  reentry eligibility (RE) codes.  Those codes are used for administrative purposes only and used for identification of an enlistment processing procedure.

RE-3C applies to persons who do not meet the reentry grade and service criteria contained in Army Regulation 601-210.  That regulation states in effect that applicants are eligible for enlistment if they were last separated from active duty in pay grade E-3 with total active service of less than 3 years.  Personnel with a   RE-3C code are ineligible for enlistment unless a waiver is granted.  

There is no evidence, nor has the applicant provided any, to indicate that his rank and pay grade on his DD Form 214 is incorrect.  The preponderance of evidence clearly shows that his rank and pay grade was PFC E-3, respectively at the time of his release from active duty.  Furthermore, his reentry code of 3C as shown on his DD Form 214 is also correct.  Consequently, there is no basis correct his record as he requests.

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 15 September 1991, 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 15 September 1994.

The application is dated 25 March 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

__MKP__  __CJP    _  __HBO__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002071675	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020829	
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.	110.00	
2.		
3.		
4.		
5.		
6.