MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 October 2003
	DOCKET NUMBER:   AR2003086397

	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. Carolyn Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 reenlistment (RE) code be corrected to reflect an RE code of RE-1.

APPLICANT STATES:  That he was given an RE code of RE-3 based upon his not wanting to reenlist.  He states that this code is improper and does not belong on his DD Form 214 (Certificate of Release or Discharge from Active Army).

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 Regular Army on 15 November 1977 for a period of 3 years.  Following completion of all required military training, the applicant was awarded military occupation specialty (MOS) 76Y, Supply Specialist, and was assigned to Fort Knox, Kentucky.

On 15 December 1980, the applicant arrived in Germany for assignment with the 6th Infantry, Berlin Brigade, and served with this unit until he departed for the United States on 5 November 1983.

The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  This document identifies the reason and characterization of the discharge.  

The applicant’s DD Form 214 shows that on 5 December 1983 he was discharged under the provisions of chapter 4, Army Regulation 635-200 by reason of “expiration term of service” (ETS) with an honorable discharge.  His DD Form 214 reflects "ETS" as the narrative reason for discharge, with a separation code of JBK, and an RE code of RE-3.  He was credited with 6 years and 21 days of creditable military service.  He was serving in the rank of sergeant/E-5 at the time of discharge.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-1 applies to persons considered qualified to reenter the Army.

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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board carefully reviewed the available records; however, the Board was unable to confirm the applicant’s contention that his RE code is incorrect and he has provided no evidence in support of his contention.  

2.  Lacking evidence to the contrary, the Board presumes that the RE code of RE-3 assigned by the Army was the appropriate RE code for the applicant’s facts and circumstances at the time of his discharge.

3.  The alleged error or injustice was, or with reasonable diligence should have been discovered on 5 December 1983, the date he was discharged from the Army.  The time for the applicant to file a request for correction of any error or injustice expired on 5 December 1986.

4.  The application is postmarked 20 January 2003 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 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__kan___  __le____  __jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003086397	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.