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ARMY | BCMR | CY1990-1993 | 9105830
Original file (9105830.rtf) Auto-classification: Denied
APPLICANT REQUESTS: Correction of appropriate military records to show a reentry eligibility (RE) code which would allow reenlistment. In effect, this constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.
EVIDENCE OF RECORD : The applicant's military records show:

He was born on 27 December 1956. He completed 11 years of formal education. On 29 October 1975, he enlisted into the Regular Army for 3 years. His Armed Forces Qualification Test score was 36 (Category III). He completed the required training and was awarded military occupational specialty 63B10 (Wheel Vehicle Mechanic). The highest grade he achieved was pay grade E-4.

On 20 September 1977, the applicant was convicted by a special court-martial for unlawfully entering a store and breaking restriction. He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 3 months, and a forfeiture of $175 pay per month for 3 months.

On 29 March 1979, court-martial charges were preferred against the applicant for being absent without leave from
15 August 1978 to 19 March 1979.

On 30 March 1979, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf, but declined to do so.

On 2 April 1979, a medical examination found the applicant medically fit for retention.

On 17 April 1979, the appropriate authority approved his request and directed the issuance of a discharge UOTHC. On 3 May 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge under other than honorable conditions (UOTHC). He had completed 2 years,
7 months and 22 days of creditable active service and had 289 days of lost time. He was given a reentry code of RE-3.

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UOTHC is normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.

RE-3 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.

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 3 May 1979, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 3 May 1982.

The application is dated 16 August 1990, 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

CONCUR WITH DETERMINATION




                  Karl F. Schneider
                  Acting Director

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