RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            8 January 2004                  
	DOCKET NUMBER:    AR2003091374

	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	
	Mr. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Barker		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, in effect, that the reentry (RE) code of RE-3 he was assigned upon his separation from active duty be removed from his separation document (DD Form 214).

2.  The applicant states, in effect, that he took the "early out" from the Army in order to settle his divorce and to gain custody of his children.  His domestic issues are now completed and he would like to again enlist into the Army.  He further indicates that he is now a licensed nurse and feels he would be a valuable asset to the Army.  However, his current RE code is preventing him from reentering the Army. 

3.  The applicant provides no additional documentation to support his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 17 February 1994.  The application submitted in this case is dated 2 May 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.  The applicant entered active duty on 27 August 1990.  He continuously served on active duty for 3 years, 5 months, and 21 days until 17 February 1994, at which time he was honorably separated.

4.  The separation document issued to the applicant on the date of his 
separation confirms that the authority for his separation was paragraph 16-8, Army Regulation 635-200, by reason of reduction in force.  This document also confirms that he was assigned a Separation Program Designator (SPD) code of MCC and an RE code of RE-3.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).  

5.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 16-8 of this regulation sets forth the requirements for early separation of enlisted personnel due to reduction in force, strength limitations, or budgetary constraints.  The service of personnel separated under this paragraph will be characterized as honorable.

6.  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 U.S. 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 considered not fully qualified for reentry or continued Army service, but the disqualification is waivable.

7.  Army Regulation 635-5-1 (SPD) codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of MCC was the appropriate code for the applicant based on the guidance provided in this regulation for soldiers separating under the provisions of Chapter 16, Army Regulation 635-200, by reason of reduction in force.

DISCUSSION AND CONCLUSIONS:

1.  By regulation, soldiers separated by reason of reduction in force are assigned an SPD code of MCC and a corresponding RE code of RE-3.  RE-3 indicates that the soldier requires a waiver in order to reenlist.  

2.  The evidence of record confirms that the applicant was properly given an 
RE-3 code as a result of the SPD code he received based on the authority and reason for his discharge in accordance with the applicable regulation.  It also appears that the applicant was or should have been aware of the basis for the RE-3 code assignment at the time of his separation, as evidenced by his signature on the DD Form 214 he was issued at the time.

3.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the error or injustice now under consideration on 17 February 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 February 1997. 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

_KAN___  __LB___  __JM___  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.  

		Kathleen A. Newman
		   CHAIRPERSON

INDEX

CASE ID	AR2003091374	
SUFFIX		
RECON		
DATE BOARDED	2004/01/08	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19940217	
DISCHARGE AUTHORITY	AR635-200, Chap 16-8 . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.ADMIN	100.0300.0000	
2.		
3.		
4.		
5.		
6.