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.
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:
She was enlisted in the Reserve delayed entry program on
10 October 1986 for 8 years, and on 9 July 1987 she enlisted in the Regular Army for 3 years.
She was enlisted in the Regular Army on 1 February 1990 for 3 years.
On 12 August 1992 her check cashing privileges were suspended for cashing checks with insufficient funds.
On 27 August 1992 she received a bar to reenlistment based on her misconduct, dishonored checks, suspension of check cashing privileges, and several counsellings concerning her conduct. Her commander noted that she was unsuitable for further military service, and she cannot follow orders and is reluctant to repay bad debts. She acknowledged the bar and elected not to submit a statement in her own behalf.
On 28 August 1992 she stated she could not overcome the bar and asked for an early discharge. She acknowledged recoupment of unearned portions of any bonus she received was required, and that once separated she would not be permitted to reenlist at a later date.
On 8 November 1992 she was honorably discharged prior to her Expiration Term of Service (ETS), under the authority of Army Regulation 635-200, paragraph 16-5, based on this request and stated inability to overcome the unit imposed bar to reenlistment. She was discharged in pay grade E-4 with 2 years, 9 months, and 7 days of active duty for this enlistment, and she was assigned code RE-4.
Army Regulation 601-280, in effect at the time, 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, indebtness, recurrent nonjudicial punishment, slow promotion progression, no demonstrated potential for future service, and substandard performance of duties. It also prescribed that code RE-4 would be assigned for individuals discharged immediately and prior to their ETS, based on their request and stated inability to overcome a bar to reenlistment.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 16 covers discharges cased by changes in service obligations. Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge. Incident to the request the member must state that he understands that recoupment of unearned portions of any enlistment or reenlistment bonus is required and that later reenlistment is not permitted.
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 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.
RE-4 indicates that an individual was separated from active duty based on his/her inability to overcome a bar to reenlistment, prior to the expiration of his/her term of service.
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
8 November 1992, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 8 November 1995.
The application is dated 17 October 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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