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. He states that the dates on his DD 214 are inaccurate; and that his RE code should be changed to a more favorable code.
He also states that he went AWOL while assigned to Fort Jackson, South Carolina and was placed in a deserter status, and that the reason he went AWOL was because he was put into the hospital at Fort Hood, Texas for reasons not stated. He further states that while AWOL he was contacted by the Red Cross, and his wife at the time of his status. Upon his return to Fort Jackson he was placed in a Personnel Control Facility, without being provided any legal counsel, or knowledge of why he was being discharged on a Chapter 10.
He further states that he has been trying to obtain a correction of his DD 214 for the past 15 years without success.
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 applicants military records show:
He was enlisted in the Regular Army on his first term on
21 May 1969 for and served honorably for 1 year, 5 months, and 10 days, and he attained pay grade of E-4 on 20 May 1970. He was honorably discharged on 30 October 1970. He then immediately reenlisted for his second term on
31 October 1970 for 3 years.
He served a tour in Vietnam from 22 January 1971 to
21 January 1972.
The applicant was AWOL on numerous occasions:
3-10 January 1971 (8 days); 9 March 1972 - 5 April 1972 (27 days); 28 April 1972 - 30 August 1972 (125 days), totaling 159 days.
On 31 August 1972 he was recommended for a bar to reenlistment.
He was reduced to pay grade E-1 on 12 September 1972 for misconduct.
He was discharged under other than honorable conditions on 14 September 1972 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 served 2 years, 9 months, and 16 days of total active service and he had 159 days of lost time due to AWOL. He was assigned an RE 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
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, chapter 9, 10, 13, 14, and 16 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
14 September 1972, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 14 September 1975.
The application is dated 25 April 1996 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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