RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20040010448


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |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 reentry eligibility (RE) code of RE-4
be upgraded.

2.  The applicant states, in effect, that he was young and immature, had
marital problems and was hanging around with the wrong crowd.  He wants his
RE code changed so that he can reenlist.

3.  The applicant provides a letter from the Army Recruiting Command to a
Member of Congress to the effect that the applicant is ineligible to re-
enter the service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 July 1997.  The application submitted in this case is dated
10 November 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.

3.  The applicant joined the Army Reserve, completed basic and advanced
individual training as a combat engineer and returned to his unit.  He
enlisted in the Regular Army on 1 October 1992 in pay grade E-2.

4.  He served without a discreditable incident of record and was advanced
to specialist (E-4) on 8 August 1994.  On 10 August 1995 a general court-
martial convicted him, contrary to his pleas of two specifications of
possession and distribution of marijuana.

5.  The convening authority approved the findings and sentence, which
included reduction to pay grade E-1, confinement for 9 months and a bad
conduct discharge.  Except for the bad conduct discharge, which was
suspended pending appellate review, the sentence was ordered executed.
6.  The applicant was placed on involuntary excess leave on 30 March 1996.
On 21 October 1996 the Army Court of Military Review affirmed the findings
and sentence.  The applicant did not appeal to the Court of Military
Appeals within the allotted 60 days following receipt of notification and
the discharge was ordered executed.

7.  On 24 July 1997 the applicant was separated with a bad conduct
discharge and assigned a reentry code of RE-4.

8.  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 those individuals who are
definitely not eligible for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The request to change the applicant's records to show an RE code which
would allow reenlistment constitutes a request to disregard or waive those
disqualifications which preclude reenlistment.

2.  The applicant had already completed training in the Army Reserve when
he enlisted in the Regular Army in pay grade E-2.  He then served
approximately 22 months without a discreditable incident of record.  He had
demonstrated a capacity for honorable service which clearly shows he was
not unusually immature.

3.  He contends that his misconduct was somehow related to marital
problems.  However, there is no available evidence to substantiate this
contention.

4.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

5.  Since there is no basis for changing the discharge, there is no basis
for granting his remaining requests.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged  error  or
injustice now under consideration on 24 July 1997; therefore, the  time  for
the applicant to file a request for correction of  any  error  or  injustice
expired on 23 July 2000.  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

__JEA___  __BJI___  __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.




                                  _    James E. Anderholm_________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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