MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           1 August 2000                   
	DOCKET NUMBER:   AR1999034690

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Ernest W. Lutz Jr.		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:  That his reentry eligibility (RE) code be changed from RE-3 to one that does not limit his reenlistment; and that he be compensated for the way the military has handled his situation.  He states that he requested a compassionate reassignment and had ample supporting documentation to justify one; however, his chain of command denied it and processed him for a hardship discharge.  He believes he should now be compensated for the career he lost as a result of his discharge.  He indicates that he is providing his original request for a compassionate reassignment, but only provides a privacy release form from his Representative in Congress.

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 US Army Reserve (USAR) delayed entry program (DEP) on 10 February 1984.  On 13 June 1984, he entered the Regular Army (RA) for 3 years. Upon completion of all required military training, he was awarded military occupational specialty 64C (Motor Transport Operator) and assigned to a unit in Germany.  He remained in Germany until late 1986, when he was assigned to Fort Eustis, Virginia.

On 9 January 1987, while stationed at Fort Eustis, the applicant reenlisted under the RA reenlistment option for 3 years and a future assignment in accordance with the needs of the Army.

On 15 April 1988, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 6-3a, by reason of dependency.  He had 3 years, 10 months, and 3 days of creditable active Federal service.  There is no record of the actual reason for the dependency discharge or of any request for a compassionate reassignment.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6, paragraph 6-3a of that regulation, in effect at the time, provided, in pertinent part, for the separation of enlisted personnel because of genuine dependency of a member of the soldier's immediate family.  Separation for dependency is voluntary and will be made only upon application by the soldier.

Army Regulation 614-200 prescribes the reporting, selection, assignment and utilization of enlisted personnel, excluding initial entry training (IET).  It provides general assignment policies and responsibilities for managing the enlisted force.  Chapter 5, Section III provides that soldiers may be reassigned, deleted, or deferred from assignment instruction, or attached as a result of an approved compassionate request.  Normally, the following conditions alone are not a basis for a compassionate request:  (1) Soldier's desire is to be in a new area; (2) Divorce or separation that is the result of family separation due to military requirements; (3) Legal actions and court appearances for matters relating to divorce and/or child custody issues; (4) Recent awarding of custody of dependent child or children to the soldier under the terms of a divorce or legal separation by temporary or permanent court order; (5) Sole parenthood; (6) Pregnancies involving threatened miscarriage, breech birth, cesarean section, or RH incompatibility of spouse; (7) The problem can be expected to be resolved by family members joining the soldier at their duty station; (8) Minor allergies suffered by the members of the family due to climatic conditions; (9) Problems relating to home ownership or housing shortages; (10) Financial problems alone or as the result of mismanagement of financial affairs by the soldier or the soldier's family, or problems related to an off-duty job, spouse's job, or private business activities; and (11) Chronic problems relating to parents or parents-in-law.

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 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.  An RE-3 code applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200.  Persons discharged for reasons of dependency also receive an RE-3 code.

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 April 1988, the date discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 15 April 1991.

The application is dated 12 November 1999 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__dsj___  __kak____  __ewl___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999034690	
SUFFIX		
RECON		
DATE BOARDED	20000801	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	100.0300	
2.		
3.		
4.		
5.		
6.