APPLICANT REQUESTS: That his reentry (RE) code of RE-3 be corrected to RE-1. He states that he was never informed why he was given the RE-3 code and does not feel that his conduct justified a derogatory RE code.
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 Regular Army on 18 February 1977, was awarded the military occupational specialty of personnel records specialist, and was promoted to pay grade E-4.
On 20 August 1980 the applicants commander initiated a local bar to reenlistment against the applicant. The basis for that recommendation was two nonjudicial punishments administered under Article 15, UCMJ, which resulted in his reduction to pay grade E-3, and numerous counseling sessions concerning his negative attitude and his failure to comply with rules and regulations. The applicant chose not to submit any statement in his behalf and the bar was approved.
On 9 January 1981 the applicant was again reduced in grade from E-3 to E-2, presumably as a result of another nonjudicial punishment.
On 17 February 1981 the applicant was honorably released from active duty by reason of completion of his required service and was transferred to the USAR Control Group (Reinforcement). The DD Form 214 he was issued shows that he was assigned an RE code of RE-3.
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, then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment. That chapter included a list of armed forces RE codes, including RA RE codes.
Army Regulation 601-210, table 3-6, then in effect, listed the various RE codes and describes the reason(s) a soldier is assigned a particular code. The code of RE-1 was assigned to individuals who completed an initial term of active service and who were fully qualified to reenlist when last separated. The code of RE-3 applied to persons not qualified for continued Army service, but the disqualification is waivable. Certain persons who had received nonjudicial punishment were so disqualified, as were persons with bars to reenlistment. The code RE-3C applied to persons who have completed more than 4 months service who did not meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who had been denied reenlistment under the Qualitative Retention Process according to chapter 10, Army Regulation 601-280.
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 17 February 1981, the date the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 17 February 1984.
The application is dated 7 July 1995 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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