MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 12 MARCH 2002
         DOCKET NUMBER: AR2001064707


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

---

APPLICANT REQUESTS: That his reentry (RE) code, “RE-3,” be changed in order for him to enlist in the Navy.

He states that his RE code will not allow his entry on active duty.

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:

The applicant enlisted in the Army Reserve for 8 years on 19 September 1992. He was ordered to initial active duty for training (IADT) with a reporting date to Fort Leonard Wood, Missouri of 24 June 1993.

On 30 June 1993 the applicant was counseled because he disobeyed a lawful order and because he was not at his place of duty. He was counseled again on 3 July 1993 for his poor attitude and his lack of motivation. On that same date he was counseled for being absent from his place of duty. On 6 July 1993 he was counseled because he stated that he was going to do bodily harm to himself in order to get home, and for disobeying a lawful order. He was counseled on 10 July 1993 for failing the Army Physical Fitness Test (APFT). He was counseled on 11 July 1993 for sleeping on fire guard, failing to follow instructions, lacking self-discipline, and lacking motivation.

A 12 July 1993 report of mental status evaluation indicated that the applicant stated that he could not adapt to the military way of life and did not want to be there [in the Army]. The report indicated that the applicant’s overall mental status appeared within normal limits, but that he appeared immature for his age and did not appear to possess the coping skills needed to complete training. He did not appear to have any motivation and did not seem to have the potential to become a productive soldier. He had the mental capacity to understand and participate in proceedings, was mentally responsible, and met the medical requirements for retention in the Army. The community health service recommended that he be considered for an administrative separation from the Army.

A 14 July 1993 counseling form indicates that although the applicant was having difficulties with adapting to military life, he was sincere in that he wanted to train. The counselor, a Sergeant Major, recommended that the applicant continue training and be given the opportunity to demonstrate that he could become a productive soldier.

A 15 July 1993 counseling form indicates that the applicant’s first sergeant informed the applicant that he was recommending his discharge because of his past actions and his attitude. He was counseled that same date by his commanding officer.

The applicant’s commanding officer notified the applicant that he was initiating action to separate him for sociological reasons under the provisions of Army Regulation 635-200, chapter 11, because he could not meet the standards prescribed for successful completion of training. He stated that he was recommending that the applicant receive an entry level separation.

On 21 July 1993 the applicant stated that he acknowledged notification of the proposed separation action, that if approved, he would receive an entry level separation – uncharacterized. He stated that he had been afforded the opportunity to consult with counsel, but that he declined that opportunity. He stated that he had been advised of his rights, and indicated that he waived his rights.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged. On 26 July 1993 the separation authority approved the recommendation and directed that the applicant receive an entry level separation with an uncharacterized character of service.

The applicant was discharged on 30 July 1993. He had 1 month and 7 days of service. His DD Form 214 shows his separation code as “JGA” and his reentry code as “RE-3.”

On 12 October 2001 the Board for Correction of Naval Records forwarded the applicant’s case to this Board for action.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment. These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty. An uncharacterized separation is mandatory under this chapter.

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.

Paragraph 3-22 of that regulation identifies the reentry eligibility (RE) codes. Those codes are used for administrative purposes only and used for identification of an enlistment processing procedure. The code RE-3 applies to persons separated from his last period of service with a waivable disqualification. Paragraph 4-9 states that a waiver is required for an individual discharged because of entry level performance or conduct.

That regulation also states, in pertinent part, that prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect. Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized. Recruiting personnel are authorized to process requests for waiver.

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.

There is no evidence, nor has the applicant provided any, to indicate that his reentry code was in error or unjust and as such there is no basis to correct his reentry code. Nonetheless, his reentry code is waivable by Army standards and procedures exist for submitting and processing requests for waiver of reentry codes. It is presumed that the Navy has like standards and procedures. Consequently, should the applicant desire to enlist in the Navy, he should contact Navy recruiting personnel for assistance in this regard.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 30 July 1993, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 30 July 1996.

The application is dated 11 September 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__INW __ __RJW _ __GJW _ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

---

INDEX

CASE ID	AR2001064707
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020312
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	142.00
3.	360
4.	4
5.
6.