RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 March 2005
      DOCKET NUMBER:  AR20040002225


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DD Form 214 (Certificate of Release or
Discharge From Active Duty) for the period 4 June 1984 to 12 June 1985 be
corrected by changing his reentry code (RE code) from RE-3, 3B to one that
will allow him to enter the Active Guard Reserve (AGR) program.  In effect,
he is requesting that the characterization, reason and authority be
changed.

2.  The applicant states that his RE code was established 19 years ago.
Since then, he has been an outstanding member of the Pennsylvania Army
National Guard (PAARNG).  He found out in April 2004 that his RE code was
stopping him from getting an AGR position.

3.  The applicant provides:

      a.  Self-authored letter dated 1 June 2004.

      b.  DD Form 214 for the period 5 July 2002 to 14 March 2003.

      c.  Numerous certificates from the PAARNG.

      d.  Letters of recommendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 June 1985.  The application submitted in this case is
dated 1 June 2004.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

4.  The applicant enlisted in the Regular Army for 3 years on 4 June 1984.
Upon completing all required military training, he was awarded military
occupational specialty (MOS) 19E (Tank Driver) and assigned to the 3rd
Armored Cavalry Regiment, Fort Bliss, Texas.
5.  The applicant departed his unit in an absent without leave (AWOL)
status on 4 February 1985 and remained absent until returning to military
control at Fort Bragg, North Carolina on 1 May 1985.  Court-martial charges
were preferred against him and, after legal consultation, he requested
discharge for the good of the service in lieu of trial by court-martial
under the provisions of chapter 10, Army Regulation (AR) 635-200.  His
request was approved and he was separated under other than honorable
conditions on 12 June 1985.

6.  The applicant's DD Form 214 shows that he served 9 months and 12 days
of creditable active Federal service and had 2 months and 26 days of lost
time due to being AWOL.  He was separated under the authority of chapter
10, AR 635-200, by reason of "for the good of the service – in lieu of
court-martial" and received an RE code of RE-3, 3B.

7.  Pertinent ARs 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.  AR 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, including RA RE codes.  An RE
code of RE-3, 3B applies to persons not qualified for continued Army
service, but the disqualification is waivable.

8.  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
submit a request for a discharge for the good of the service in lieu of
trial by court-martial.  The requests may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Army policy states that although an honorable or general discharge
is authorized, a discharge under other than honorable conditions is
normally considered appropriate.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade and change in reason for discharge.  The ADRB, after
considering his case on 23 June 1987, denied his request.

3.  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.  The U.S. Court of Appeals, observing
that applicants to the Army
Discharge Review Board (ADRB) are by statute allowed 15 years to apply
there, and that this Board's exhaustion requirement (Army Regulation 15-
185, paragraph 2-8), effectively shortens that filing period, has
determined that the 3 year limit on filing to the Army Board for Correction
of Military Records (ABCMR) should commence on the date of final action by
the ADRB.  In complying with this decision, the ABCMR has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted for 3 years in 1984 and, after just 8 months of
service, he went AWOL.  Upon returning to military control, he sought
discharge under chapter 10, AR 635-200 in order to avoid the possibility of
a Federal criminal conviction.

2.  The applicant's RE code, narrative reason for discharge, and discharge
authority are all correctly represented on the subject DD Form 214.  The
applicant's argument for changing this document is not persuasive.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 23 June 1987.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 22 June 1990.  However, the
applicant did not file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jed___  __jrs___  __mjf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                        John E. Denning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002225                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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