RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          24 August 2004
      DOCKET NUMBER:  AR2004100592


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 separation code be changed and that his
reentry eligibility (RE) code be changed from RE-3 and RE-3C to one that
will allow him to further his career in the Army.  In effect, this
constitutes a request for removal or waiver of those disqualifications,
which preclude reenlistment.

2.  The applicant states that there are no supporting documents in his
Official Military Personnel File in the state of Rhode Island that supports
the misconduct code that he received during his time on active duty.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 27 May 1988.  The application submitted in this case is dated
29 October 2003.

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 limitation 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.  After completing over 3 years and 3 months of service in the United
States Army Reserve (USAR), on 23 July 1986, he enlisted in the Regular
Army in the Delayed Entry Program as an infantryman, for 4 years in the pay
grade of E-2.  He was promoted to the pay grade of E-3 on 1 December 1986.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on
10 August 1987, for wrongful use of marijuana.  His punishment consisted of
a reduction to the pay grade of E-2, a forfeiture of pay in the amount of
$250.00, restriction and extra duty.

5.  On 31 August 1987, NJP was imposed against him for breaking restriction
and for failure to obey a lawful order.  His punishment consisted of a
forfeiture of pay in the amount of $369.00, restriction and extra duty.

6.  On 18 February 1988, NJP was imposed against the applicant for failure
to go to his appointed place of duty.  His punishment consisted of a
reduction to the pay grade of E-1, a forfeiture of pay in the amount of
$156.00, restriction and extra duty.
7.  The applicant had NJP imposed against him again on 25 March 1988, for
failure to go to his appointed place of duty.  His punishment consisted of
a forfeiture of pay in the amount of $156.00, restriction and extra duty.

8.  The applicant was counseled on 2 April 1988, regarding his failure to
perform guard duty, his failure to repair, his positive urinalysis and his
breach of restriction.  He was informed that the counseling statement was
being furnished to him not as a punitive measure but as an administrative
measure to stress that continued behavior of a similar nature may result in
action to eliminate him from the Army for unsuitability, unsatisfactory
performance or misconduct being initiated.  He was further informed of the
effects of a less than fully honorable discharge and that it was highly
unlikely that his discharge would be upgraded in the future.  He was told
that his counseling statement was being forwarded for filing in his
Military Personnel Records Jacket.

9.  On 5 April 1988, the applicant underwent a mental status evaluation and
he was determined to be mentally responsible; able to distinguish right
from wrong and to adhere to the right and to have the mental capacity to
understand and to participate in board proceedings.

10.  The applicant was notified on 5 April 1988, that action to eliminate
him from the Army under the provisions of Army Regulation 635-200, chapter
14, for misconduct had been initiated.  His commander cited his NJP for use
of a controlled substance, his NJP for breaking restriction, his two NJPs
for failure to repair as a basis for the recommendation for discharge.  The
applicant acknowledged receipt of the notification and after consulting
with counsel; he waived his right to submit a statement in his own behalf.


11.  The appropriate authority approved the recommendation for discharge on
17 May 1988.  Accordingly, on 27 May 1988, the applicant was discharged
under the provisions of Army Regulation 635-200, chapter 14, for
misconduct, based on a pattern of misconduct.  He had completed 1 year, 10
months and 5 days of net active service for this period and he was
furnished a General Discharge Certificate.  The Certificate of Release or
Discharge (DD Form 214) that he was furnished at the time of his discharge
shows that he was issued a JKM (Misconduct) separation code and reentry
eligibility codes of RE-3 and RE-3C.

12.  The available records show that the applicant was a member of the
RIARNG from 15 March 1991 until he was released from the active guard on 14
March 1993 and was transferred to the USAR Control Group (Annual Training).
 He reenlisted in the RIARNG on 31 March 1993 and he currently remains a
member of the RIARNG.
13.  Army Regulation 635-5-1 prescribes the specific separation codes to be
entered on the Certificate of Release or Discharge (DD Form 214).  It
states that when a soldier is released from active duty as a result of
misconduct the soldier will be assigned a JKM separation code.

14.  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.

15.  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 chapters 9, 10,
13, and 14 of Army Regulation 635-200.

16.  RE-3C applies to persons who have completed more than 4 months service
who do not meet the basic eligibility pay grade requirements of chapter 2,
Army Regulation 601-280, or who have been denied reenlistment under the
Qualitative Retention Process according to chapter 10, Army Regulation 601-
280.

DISCUSSION AND CONCLUSIONS:

1.  The actions by the Army in this case were proper and there is no doubt
to be resolved in favor of the applicant.

2.  The applicant’s contentions have been noted; however, they are
unsupported by the evidence of record.  The information contained in his
official records clearly reflects several acts of the misconduct, which was
used as a basis for his discharge from active duty.  Consequently, he was
appropriately discharged based on misconduct and he was assigned a
separation code that coincides with his reason for discharge.

3.  The applicant was separated and assigned a reentry code in accordance
with regulations then in effect and there is no basis for changing the RE
code or removing it from his record.



4.  Although the Army Board for Correction of Military Records has denied
both a change in your reentry eligibility code and waiver of the
disqualification, this does not mean that you have been completely denied
the opportunity to reenlist. Recruiting personnel have the responsibility
for initially determining whether an individual meets current enlistment
criteria. They are required to process a request for waiver under the
provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army
Reserve Enlistment Program).  Therefore, since enlistment criteria does
change, and since you have the right to apply for a waiver, it is suggested
that you periodically visit your local recruiting station to determine if
you should apply for a waiver.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 May 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 May 1991.  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

__mkp___  __mhm___  __phm___  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.



                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100592                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040824                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1021 |100.0000.0000/ADMINISTRATIVE MATTERS    |
|2.  4                   |100.0300.0000/ CHANGE RE CODE           |
|3.  189                 |110.0000.0000/SEPARATION DOCUMENT       |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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