RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 September 2004
      DOCKET NUMBER:  AR2004101307


      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:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 be
changed from RE-4 to “at least” an RE-3.

2.  The applicant states, in effect, he broke his foot while he was in
training and that he had to have surgery.  He states that he was sent home
on leave to recover and that once he returned he was still unable to
complete his training.  He states that he was given the option of either
sitting behind a desk or to go home and to return when he was able to
complete his training.  He states that he decided to go home and in
February 1999, he enlisted in the Texas Army National Guard.  He goes on to
state that everything was going fine until he noticed that he was not
getting paid and that when he notified his drill instructor he showed no
concern.  He states that after 2 months of complaining that his bills were
not getting paid he told his drill sergeant that if nothing was done
regarding his failure to be paid, he would take care of the problem
himself.  He states that he was sent to the National Guard liaison office
and that his problem continued to go unsolved.

3.  The applicant states that his drill sergeant verbally and physically
disrespected him and that he retaliated by doing the same.  He states that
he was given extra duty as punishment for being disrespectful toward a
senior noncommissioned officer and that he could not take it anymore so he
went absent without leave (AWOL).  He states that he never wanted to go
AWOL; however, while he was AWOL he contacted his recruiter who advised him
to wait 30 days before he turned himself in or he would be returned to
military control to face even more trouble.  He states that he took his
recruiter’s advice and waited until mid October to turn himself in and when
he was discharged he was assigned an RE-4 code.  He concludes by stating
that it has taken almost 4 years to step back into a military facility;
that he is ashamed that he went AWOL; that he wishes that things had not
happened the way that they did; that he is sorry for letting down his
country and hopes that he can be forgiven; that he has always wanted to be
a soldier; and that he loves the military and he wishes to serve his
country.

4.  The applicant provides no additional documentation in support of his
application.





CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 5 April 2000.  The application submitted in this case is dated
24 November 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.  On 12 December 1995, he enlisted in the Army for 3 years in the pay
grade of E-1.

4.  The available records show that on 23 April 1996, the applicant was
notified that action to eliminate him from the Army under the provisions of
Army Regulation 635-200, chapter 11, had been initiated.  He acknowledged
receipt of the notification and he waived his right to be represented by
counsel.  He also waived his right to a separation medical examination and
he opted not to submit a statement in his own behalf.

5.  The appropriate authority approved the recommendation for discharge on
2 May 1996.  Accordingly, on 8 May 1996, the applicant was discharged,
under the provisions of Army Regulation 635-200, chapter 11, based on entry-
level performance and conduct.  He had completed 4 months and 12 days of
total active service; his character of service was uncharacterized; and he
was assigned an RE-3 code.

6.  On 19 May 1997, the Army Discharge Review Board denied the applicant’s
request for a change in the characterization of his discharge.

7.  On 16 February 1999, after being granted a waiver of his
disqualifications, the applicant enlisted in the Texas Army National Guard
(TXARNG) for 7 years and 30 weeks, in the pay grade of E-1.  He was ordered
to initial active duty for training on 26 May 1999.




8.  The applicant was discharged from the TXARNG on 20 September 1999, and
he was transferred to the United States Army Reserve (USAR) Control Group
to complete his Reserve obligation.  The Report of Separation (NGB Form 22)
that he was furnished at the time of his discharge from the TXARNG shows
that he was discharged under the provisions of National Guard Regulation
600-200, paragraph 8-27, as a result of being AWOL from initial active duty
training.  He had completed 7 months and 5 days of net service for this
period and he was assigned an RE-3 code.

9.  The facts and circumstances pertaining to the applicant's discharge
from the Regular Army are not available for review.  The Certificate of
Release or Discharge (DD Form 214) that he was furnished at the time of his
discharge from active duty indicates that on 5 April 2000, he was
discharged under other than honorable conditions, under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial.  His DD Form 214 also shows that he had lost time
from 23 August 1999 until 17 October 1999.  He was assigned an RE-4 code.

10.  The applicant has now submitted an application to this Board in which
he states that he is currently a member of the Active Guard Reserve.

11.  Army Regulation 601-280 prescribes the eligibility criteria and
options available in the Army Reenlistment Program.  Chapter 6 of that
regulation provides for barring from reenlistment individuals whose
continued active duty is not in the best interest of the military service.
Examples of rationale for reenlistment disqualification include, but are
not limited to, AWOL, indebtedness, recurrent nonjudicial punishment, slow
promotion progression, no demonstrated potential for future service, and
substandard performance of duties.

12.  RE-4 indicates that a person is not qualified for continued Army
service by virtue of being separated from the service with a nonwaivable
disqualification.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The Board has noted the applicant’s contentions.  However, during his
first period of enlistment, he was discharged as a result of entry-level
performance conduct.  He was granted a waiver and he was allowed to enlist
in the TXARNG. He was then ordered to active duty for training and he went
AWOL.
3.  Based on the available record, he was assigned an RE code that
appropriately reflects his overall record of service after a thorough
review of his entire record had been conducted.  At the time in question,
he had two separate periods of service on active duty.  Both periods of
active duty service resulted in his being discharged based on his
performance and/or conduct.  It appears that he was assigned an RE-4 code
as a result of his being AWOL and in accordance with the applicable
regulation, he was not qualified for continued service at the time of his
discharge.

4.  Therefore, in the absence of evidence to the contrary, it must be
presumed that what the Army did in his case is correct and that the RE-4
code that is currently reflected on his DD Form 214 is correct.

5.  Additionally, the applicant states that he is currently a member of the
Active Guard Reserve and he has the option of applying for a waiver for any
disqualifications that may preclude him from enlistment in the RA.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 April 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 April 2003.  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

__jch___  __bje___  __pms___  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 C. Hise
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101307                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040921                                |
|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/REENTRY CODE              |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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