RECORD OF PROCEEDINGS

	IN THE CASE OF:	  

	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20070002894 

	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.

	Ms. Catherine C. Mitrano		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Linda D. Simmons		Chairperson	
	Mr. Jerome L. Pionk		Member	
	Mr. John G. Heck		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 his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.  He also requests that his reentry eligibility (RE) code be changed to RE-1.

2.  The applicant states he would like to reenter the Texas Army National Guard (TXARNG) at Ellington Field.  He was told that his RE code was not waivable.  He states, in effect, that he was instructed by his recruiter to apply to this Board to get his discharge upgraded and his RE code changed.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 October 1991.  The application submitted in this case is dated 16 February 2007.

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 limitations 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.  On 4 January 1991, the applicant enlisted in the Regular Army in Houston, Texas, for 4 years, in pay grade of E-2.  He was transferred to Hawaii on 29 March 1991 and he successfully completed his training as an infantryman.

4.  A Criminal Investigation Division Report of Investigation indicates that on 4 June 1991, the applicant stole a personal check from his roommate from a desk in their room.  The applicant then wrote a check payable to himself, forged the signature of his roommate, and cashed the check, thereby stealing $300.00 to purchase a plane ticket to effect his desertion from the Army.  At the time that the investigation was conducted, the applicant had already gone AWOL. 

5.  The available records show that on 6 June 1991, the applicant went absent without leave (AWOL) and he remained absent until he surrendered to military authorities and returned to military control on 19 August 1991.

6.  On 20 August 1991, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification on 22 August 1991.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

7.  The appropriate authority approved the request for discharge on 30 September 1991.  Accordingly, on 7 October 1991, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 6 months and 24 days of net active service this period and he had approximately 74 days of lost time due to AWOL.  He was assigned an RE-3 code.

8.  A review of the available records fails to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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 US 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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the fact that he has a desire to enlist in the TXARNG is not a sufficient basis for upgrading his discharge.  He completed only 6 months of a 4-year enlistment before he stole a check from his roommate and went AWOL.  Considering the nature of his offenses, it does not appear that the type of discharge that he received was too harsh.

4.  Additionally, there appears to be no basis for removal or waiver of that disqualification which established the basis for the reentry eligibility code.

5.  Although the Army Board for Correction of Military Records has denied both a change in the applicant's RE code and waiver of the disqualification, this does not mean that he has been completely denied the opportunity to reenlist. Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program).  Therefore, since the enlistment criteria does change, and since he has the right to apply for a waiver, it is suggested that he periodically visit his local recruiting station to determine if he should apply for a waiver.

6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 October 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 October 1994.  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

__JLP__  ___LDS__  __JGH___  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.

____Linda D. Simmons___
          CHAIRPERSON

INDEX

CASE ID	AR20070002894	
SUFFIX		
RECON		
DATE BOARDED	20070726	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/FOR THE GOOD OF THE SERVICE	
2.		
3.		
4.		
5.		
6.