RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 OCTOBER 2005 DOCKET NUMBER: AR20050001414 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. Jessie B. Strickland Analyst The following members, a quorum, were present: Mr. Ted Kanamine Chairperson Mr. Patrick McGann Member Ms. Carol Kornhoff Member 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 the Narrative Reason for Separation and Reentry (RE) Code on his report of separation (DD Form 214) be changed to a more favorable reason and code. 2. The applicant states that at the time he was young and stupid and chose a method to get out of his commitment that is affecting his ability to obtain employment as a peace officer. He goes on to state that he was the top graduate at his advanced individual training (AIT) class and made the mistake of not accepting his National Security Agency (NSA) assignment and instead ended up in Germany where his platoon sergeant threatened his life after he lost a stripe due to an incident that occurred while he was on guard duty. He further states that he followed bad advice and saw no other way, even though the diagnosis was bogus. 3. The applicant provides no additional documents with his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 29 October 1987. The application submitted in this case is dated 21 January 2005. 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 was born on 29 June 1965 and enlisted in the New Jersey Army National Guard (NJARNG) on 3 April 1985. He served with the NJARNG until he was honorably discharged on 10 April 1986 for enlistment in any component of the Armed Forces. He enlisted in the Regular Army in Newark, New Jersey, on 30 July 1985, for a period of 3 years and training as an electronic warfare signal intelligence non-communications interceptor. 4. He completed his basic combat training at Fort Dix, New Jersey and his AIT at Fort Devens, Massachusetts. He was transferred to Germany on 16 February 1987 and was assigned to a military intelligence company. 5. On 20 August 1987, nonjudicial punishment (NJP) was imposed against him for dereliction in the performance of his duties in that he negligently failed to stay alert while on guard duty by sitting in a vehicle reading a book and listening to a radio. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 45 days), extra duty and an oral reprimand. He appealed the punishment; however, his appeal was denied on 28 August 1987. 6. Meanwhile, on 24 August 1987, the applicant underwent a mental status evaluation and was diagnosed with a mixed personality disorder. The examining psychiatrist opined that the disorder was so severe that his ability to function effectively in the military environment was significantly impaired. 7. On 2 September 1987, the applicant’s commander initiated a bar to reenlistment against the applicant based on his disciplinary record and his demonstrated poor job performance and inability to adapt to military life. The applicant acknowledged the actions of the commander and declined to submit a statement in his own behalf. The appropriate authority approved the local bar to reenlistment on 3 September 1987. 8. On 10 September 1987, the applicant submitted a request for discharge under the provisions of Army regulation 635-200, paragraph 16-5, due to his inability to overcome a locally imposed bar to reenlistment. He also indicated that he understood that if his request was approved, he would not be permitted to reenter the service. 9. The appropriate authority approved his request on 25 September 1987 and directed that he be furnished an Honorable Discharge Certificate. 10. Accordingly, he was honorably discharged on 29 October 1987, under the provisions of Army Regulation 635-200, paragraph 16-5b, due to a locally imposed bar to reenlistment. He had served 1 year, and 3 months of total active service and was issued a Separation Code of “KGF” and a RE Code of “4.” 11. Army Regulation 601-280, in effect at the time, prescribes the eligibility criteria and options available in the Army Reenlistment Program. Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active duty is not warranted. Examples of rationale for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties. 12. Army Regulation 635-200 sets forth the basis authority for the separation of enlisted personnel. Chapter 16 covers the discharges caused by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. 13. 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 reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR. 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-4 indicates that a person is not qualified for continued Army service by virtue of being separated from the service with a nonwaivable disqualification such as a bar to reenlistment. DISCUSSION AND CONCLUSIONS: 1. In order to justify correction of a military record the applicant must show to the satisfaction of the 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. 2. The applicant’s bar to reenlistment was imposed in compliance with the applicable regulation with no indication of procedural errors which would tend to jeopardize his rights. 3. The applicant was afforded the opportunity to submit matters in his own behalf when he was notified that a bar was being imposed and chose instead not to do so. 4. Not only did the applicant not dispute the reasons for the bar, he elected to separate from the service rather than to attempt to overcome the circumstances of the bar. 5. The applicant’s contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating when compared to his overall record of service during such a short period of service. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 October 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 October 1990. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____TK _ ___PM __ ___CK __ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____Ted Kanamine_________ CHAIRPERSON INDEX CASE ID AR20050001414 SUFFIX RECON YYYYMMDD DATE BOARDED 20051013 TYPE OF DISCHARGE (HD) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1.110.0200 191/rsn/auth 2. 3. 4. 5. 6.