APPLICANT REQUESTS: In effect, 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. He states, in effect, that he was willfully mistreated, that he was reduced in rank and finally after continous harrassment he was forced out of the military, which prevented him from receiving benefits of retirement.
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 was born on 13 September 1952. He completed 12 years of formal education. On 31 August 1972, he enlisted into the Regular Army for 2 years and his service thereafter was continuous through reenlistments and extensions.. His military occupational specialty 36K10 (Tactical Wire Operation Specialist). The highest grade he achieved was pay grade E-6.
On 27 May 1986, the applicant was given an adminstrative Letter of Reprimand (LOR) for driving while intoxicated and for being disrespectful.
On 19 March 1987, the applicant accepted monjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for driving while intoxicated. His imposed punishment was a reduction to pay grade E-5 and 45 days extra duty.
On 9 April 1987, the applicant was given another administrative (LOR) for drinking while intoxicated.
On 12 April 1987, the applicant accepted an NJP, under Article 15, UCMJ, for dereliction in the performance of his duty. His imposed punishment was a forfeiture of $180 pay (suspended for 60 days) and 14 days extra duty.
On 14 October 1988, the Master Sergeant/Sergeant Qualitative Management Program (QMP) Selection Board reviewed the applicants Official Military Personnel File. After a comprehensive review of his file, the QMP board barred the applicant from reenlistment. The bar to reenlistment was based on the applicants record of service, his duty performance and future potential for retention in the Army.
On 10 November 1988, the applicant was counseled and advised of the effects of the bar to reenlistment and his rights to an appeal. On 11 November 1988, the applicant waived his option for an appeal.
On 7 April 1989, the appropriate authority approved his request and directed the issuance of an honorable discharge. On 11 April 1989, the applicant was discharged, in pay grade E-5, under the provisions of Army Regulation 635-200, paragraph 5, (HQDA Imposed Bar To Reenlistment) with an honorable character of service. He had completed 16 years,
7 months and 11 days of creditable active service. He received the Army Achievement Medal, the Good Conduct Medal, the Army Commendation Medal, the National Defense Service Medal, the Noncommissioned Officer Professional Development Ribbon and the Overseas Service Ribbon. He was assigned a reentry code of RE-4.
Army Regulation 635-200, at paragraph 16-5, provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, maybe immediately discharged before expiration of his term of service.
Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program. Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service. This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted. Examples of rationale for reenlistment disqualification include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties.
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-4 applies to individuals separated from the last period of service with a nonwaivable disqualification.
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 11 April 1989, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 11 April 1992.
The application is dated 24 June 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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