RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 February 2005
      DOCKET NUMBER:  AR2004105362


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Ms. Susan A. Powers               |     |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, that his reentry eligibility (RE)
code of RE-3 be changed to a RE code of RE-1.

2.  The applicant states, in effect, that he was separated after he
received nonjudicial punishment (NJP) for missing formation.  The maximum
punishment for this offense should have been confinement at hard labor for
30 days and a loss of two thirds of his pay for 1 month.  In addition to
these punishments, he received a reduction in rank and he was separated
from the military.  He believes the punishment clearly does not fit the
crime.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty) a copy of his
NJP and a supporting document.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 September 1992.  The application submitted in this case is
dated 4 March 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 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 13 October 1987, the applicant enlisted in the Delayed Entry Program
(DEP), in the US Army Reserve for a period of 8 years.  On 13 July 1988, he
was discharged from the DEP and enlisted in the Regular Army for 5 years
and training in military occupational specialty (MOS) 67Y (Attack
Helicopter Repairer).

4.  Between March and September 1992, general counseling forms show the
applicant was counseled on numerous occasions for various reasons, to
include: indebtedness, deficiencies in his personal appearance, failure to
go to his appointed place of duty at the time prescribed on more than one
occasion, personal problems and his performance and conduct.

5.  On 6 August 1992, NJP under the provisions of Article 15, Uniform Code
of Military Justice (UCMJ) was imposed against the applicant for failure to
go to his appointed place of duty at the time prescribed on 29 July 1992.
His punishment included reduction from pay grade E-4 to pay grade E-3, and
a forfeiture of $243.00 pay for 1 month (suspended for 6 months).

6.  On 12 August 1992, the applicant was determined to be physically
qualified for separation.  On 13 August 1992, he was determined to be
mentally qualified for separation under the provisions of chapter 13, Army
Regulation (AR) 635-200 for unsatisfactory performance.

7.  On 2 September 1992, the applicant's commander officially notified him
that he was being recommended for discharge under the provisions of chapter
13, AR  635-200, for unsatisfactory performance with a GD.  He was advised
that the bases for the recommendation were the bad checks that he had
written and his indebtedness to several loan agencies.  He was also advised
of the rights available to him.  On the same date, the applicant
acknowledged notification of the commander’s intent to separate him and
declined further legal counsel.  There is no evidence that he submitted a
statement in his own behalf.  He was not entitled to consideration of his
case by a board of officers.

8.  On 3 September 1992, the applicant's commander recommended that he be
separated under the provisions of chapter 13, AR 635-200 for unsatisfactory
performance with an HD.  The commander cited the bases for the
recommendation were the applicant had written several bad checks and he was
indebted to several loan agencies.  The commander also stated the applicant
had failed to correct the deficiencies in the past; that he expressed no
desire to Soldier and that he resisted Army corrective action.  The
commander requested that further rehabilitative action be waived.
Rehabilitation would not be in the best interest of the Army, as it would
not produce a quality Soldier.

9.  On 21 September 1992, the appropriate authority waived further
rehabilitative requirements, approved the separation recommendation and
directed that the applicant be issuance a GD.

10.  The applicant's DD Form 214 shows that on 25 September 1992, he was
discharged under the provisions of chapter 13, AR 635-200, for
unsatisfactory performance with a GD.  He had completed 4 years, 2 months
and 13 days of creditable active military service.  He has no recorded lost
time.  He was assigned a separation code of "LHJ" and a RE code of RE-3.

11.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 13 contains the policy and outlines the
procedures for separating individuals for unsatisfactory performance, and
provides, in pertinent part, that commanders will separate a member under
this chapter when, in the commander's judgment, the member will not develop
sufficiently to participate satisfactorily in further training and/or
become a satisfactory Soldier.  Army policy states that a GD, under
honorable conditions is normally considered appropriate, but an HD may be
granted in meritorious cases.

12.  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.  AR 601-210 covers eligibility
criteria, policies, and procedures for enlisting and processing into the RA
and the eligibility for prior service applicants for enlistment.  That
chapter includes a list of Armed Forces RE codes and RA RE codes.  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 AR 635-200.

13.  A code of RE-3 applies to persons not qualified for continued Army
service, but the disqualification is waivable.  A separation code of "LHJ"
applies to RA Soldiers separated for unsatisfactory performance under the
provisions of chapter 13, AR 635-200.

14.  AR 27-10 (Military Justice) prescribes the policies and procedures
pertaining to the administration of military justice.  Chapter 3 govern NJP
and provides that, in accordance with Section V, Manual for Courts-Martial,
punishment imposed on a Soldier in grade E-4 by a company grade officer
under Article 15, UCMJ may include a one-grade reduction in addition to any
other punishments.  If imposed by a field grade officer, the reduction may
be to grade E-1.  Punishments may be combined.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was discharged under the
provisions of chapter 13, AR 635-200, with a GD, due to unsatisfactory
performance and assigned a Separation Code of "LHJ" and an RE-code of RE-3.
These codes apply to persons not qualified for continued Army service, but
the disqualification is waivable as determined by enlistment officials and
the needs of the Army.

2.  The applicant contends that he was separated based solely on a NJP that
he received.  In fact, he was separated after he had been counseled
numerous times for a number of reasons and he resisted taking appropriate
corrective measures.  His NJP was just one of several factors leading to
his separation.

3.  The applicant's contention that his NJP reduction from E-4 to E-3 was
against regulations and was excessive is incorrect.  His reduction was
permissible by regulations, as was the combining of various other
punishments.

4.  In view of the circumstances in this case, both the assigned RE code
and the separation code were, and still are, appropriate as shown on the
applicant's DD Form 214.  The applicant has submitted no evidence that
these codes are in error or should be changed.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 13 September 1992; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 12 September 1995.  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___  __slp___  __sap___  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                 |AR2004105362                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050508                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19920913                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 13                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.4900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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