RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           5 August 2004
      DOCKET NUMBER:  AR2004101058


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Linda M. Barker               |     |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, in effect, an upgrade of his reentry (RE) code
of RE-4 to RE-3.

2.  The applicant states, in effect, that his discharge was inequitable
because it was based on one isolated incident in his over 16 years of
service.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 April 1992.  The application submitted in this case is
dated
30 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.  The applicant’s record shows that on 28 April 1992, the applicant was
honorably discharged under the provisions of paragraph 16-8, Army
Regulation 635-200, by reason of reduction in authorized strength-
qualitative early transition program.  At the time, he had completed 16
years, 5 months, and 4 days of active military service.

4.  The applicant’s record shows that he was trained in, awarded and served
in military occupational specialty (MOS) 16S (Stinger Missile Crewmember)
and the highest rank he attained while serving on active duty was staff
sergeant (SSG).  His record also shows that during his tenure on active
duty, he completed two overseas tours in Germany and an overseas tour in
Korea, and he earned the following awards:  Army Service Ribbon; National
Defense Service Medal; Army Lapel Button; Army Achievement Medal (2); Army
Commendation Medal (2); Overseas Service Ribbon (2); Noncommissioned
Officer Professional Development Ribbon (Numeral 2); Army Good Conduct
Medal (5); Driver and Mechanic Badge; Parachutist Badge; and Expert
Qualification Badge with Rifle Bar.
5.  On 15 January 1992, the applicant was notified that the Calendar Year
1991 Sergeant First Class promotion selection board, after a comprehensive
review of his record, determined that he should be barred from reenlistment
under the provisions of the Qualitative Management Program (QMP).

6.  On 27 January 1992, the applicant acknowledged receipt of his QMP
selection and completed an election form in which he chose not to appeal
and elected to be separated within 90 days.

7.  On 6 March 1992, the separation authority directed the applicant’s
honorable discharge under the provisions of paragraph 16-8, Army Regulation
635-200, by reason of reduction in authorized strength-qualitative early
transition program, and that he be assigned a separation program designator
(SPD) code of JCC and an RE code of RE-4.  On 28 April 1992, the applicant
was discharged accordingly.

8.  The separation document (DD Form 214) issued to the applicant upon his
discharge on 28 April 1992 confirms that the authority for his separation
was Army Regulation 635-200, paragraph 16-8 and that the narrative reason
for his separation was reduction in authorized strength-qualitative early
transition program.  This document also verifies that based on the
authority and reason for discharge, the applicant was assigned a SPD code
of JCC and an RE-4 code.

9.  On 22 November 1996, the Army Discharge Review Board (ADRB), after a
careful and comprehensive review of his record, determined that the
applicant’s discharge was proper and equitable and it voted to deny the
applicant’s request for a change to the reason for his separation.

10.   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 persons who are permanently
disqualified for continued Army service.
11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JCC is the appropriate code to assign
to soldiers separated under the provisions of paragraph 16-8, Army
Regulation 635-200, by reason reduction in authorized strength-qualitative
early transition program.  The SPD/RE Code Cross Reference Table included
in the regulation establishes
RE-4 as the proper code to assign members separated with this SPD code.

12.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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’s contention that his discharge was inequitable because
it was based on one isolated incident in his over 16 year career was
carefully considered.  However, there was insufficient evidence provided to
support this claim.

2.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with the applicable regulation.
All requirements of law and regulation were met and the applicant’s rights
were fully protected throughout the separation process.

3.  By regulation, the RE-4 code assigned the applicant was the proper code
to assign members separating under the provisions of chapter 16, Army
Regulation
635-200, by reason of reduction in authorized strength-qualitative early
transition program.  As a result, the RE-4 code was and still is still is
appropriate based on the authority and reason for his separation.
4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 22 November 1996.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 21 November 1999.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WTM__  __RTD  _  __LMB__  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.




            _    Walter T. Morrison___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101058                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/05                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/04/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |QMP                                     |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  04   |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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