RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            02 DECEMBER 2003                  
	DOCKET NUMBER:   AR2003090570

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his RE-Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states that his RE-Code of “4” is incorrect and is prohibiting him from reenlisting in the Army National Guard, that he simply separated early with separation pay seven years ago, and would like to once again serve his country.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 
2 August 1996.  The application submitted in this case is dated 31 March 2003.  

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  He enlisted in the Regular Army on 9 June 1987 for a period of 4 years.  He completed basic combat training at Fort Dix, New Jersey, and advanced individual training at Fort Eustis, Virginia.

4.  On 20 May 1994, the applicant received a Letter of Reprimand (LOR) for operating a motor vehicle while under the influence of alcohol.  On 11 June 1994, his commanding general directed the LOR be permanently placed in his Official Military Personnel File.

5.  On 9 May 1996, he was identified for separation under the Qualitative Management Program (QMP), under the provisions of Army Regulation 635-200, paragraph 16-8, which permitted the separation of soldiers prior to their scheduled separation dates as a result of a bar to reenlistment.  

6.  On 6 May 1996, the applicant acknowledged his Department of the Army imposed bar to reenlistment under the QMP and elected not to submit an appeal, with the understanding that he would be separated within 90 days.

7.  On 2 August 1996, the applicant was discharged with an honorable characterization of service in pay grade E-5.  He had 9 years, 1 month and 
24 days of active Federal service at the time of his discharge and received a 
RE Code of “4”, and the separation code of “JCC.”

8.  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 United States Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

9.  RE-4 applies to individuals who were separated from their last period of service with a non-waivable disqualification.  Soldiers who were separated from their term of service with a Department of the Army imposed bar to reenlistment in effect are ineligible for reenlistment and receive an RE-4.

10.  Army Regulation 601-210 also advises that RE codes may be changed only if they are determined to be administratively incorrect and that there is no requirement to change a RE code in order to qualify for enlistment.  Paragraph 
4-24 states that individual's who were barred from reenlistment by a Department of the Army level bar, and received a RE-4, are ineligible for enlistment and are not authorized waivers.

11.  A cross reference chart provided by officials from Separations Branch Human Resources Command confirms that “RE-4” is the appropriate RE Code for individuals who receive a separation code of JCC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 1996 RE code was appropriate based on the applicant’s Department of the Army level bar to reenlistment.  The applicant has not shown that any error or injustice resulted from his RE code.

2.  Records show the applicant should have discovered the error or injustice now under consideration on 2 August 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 August 1999.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FNE __  __MHM _  __PHM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		____Fred N. Eichorn_______
		        CHAIRPERSON

INDEX

CASE ID	AR2003090570	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20031202	
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.	112.00	
2.		
3.		
4.		
5.		
6.