MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           29 November 2001                  
	DOCKET NUMBER:   AR2001063083

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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 records be corrected to upgrade his reentry (RE) code to RE-1 from RE-4, in order that he may enlist in the Army Reserve.

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:

On 7 May 1980, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  He was promoted to pay grade E-6, effective 1 August 1989.

On 30 October 1989, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for his failure to go to his appointed place of duty on 24 October 1989.  His punishment included a forfeiture of $313, restriction (suspended) and extra duty.

On 15 January 1992, the CY91 Sergeant First Class/ANCOC Promotion/Selection Board imposed a Department of the Army Bar to Reenlistment under the Qualitative Management Program (QMP) on the applicant after a comprehensive review of his Official Military Personnel File.

On 11 February 1992, the applicant indicated he would not submit an appeal to the bar.  Further, he requested an extension of the expiration of his term of service of 7 days (1 July to 7 July 1992), which was approved.

On 7 July 1992, the applicant was honorably discharged, in pay grade E-6, under Army Regulation 635-200, chapter 16, based on a reduction in strength – QMP.  His separation document indicates he had 12 years, 2 months and 1 day of creditable service.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8 indicates, in pertinent part, that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, will authorize voluntary or involuntary early separation under the authority of 10 United States Code 1169 or 1171.  The Commander, Total Army Personnel Command will implement this program by issuing separation instructions pertaining to a specific class or category of soldiers.  Soldiers who are within 2 years of qualifying for retirement per chapter 12 on the scheduled separation date will not be processed unless directed by the Secretary of the Army.

Code RE-4 applies to persons separated from their last period of service with a non-waivable disqualification, including those separated with a Departmental bar to reenlistment in effect, and who are ineligible for enlistment.

This Board operates under the standard of presumption of regularity in governmental affairs.  The standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing in the records or in the evidence submitted by the applicant that overcomes this presumption.

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 7 July 1992, the date the applicant was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 7 July 1995.

The application is dated 18 September 2001 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 the 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 the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_rvo____  _wdp____  _jpi____    CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001063083	
SUFFIX		
RECON		
DATE BOARDED	20011129	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.