RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 January 2005
      DOCKET NUMBER:  AR2004106598


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 the narrative reason for his
discharge, his separation (SPD) code, and his reentry (RE) code be changed
and/or upgraded.

2.  The applicant states that he was not given proper representation from
counsel prior to his discharge.  His company was negligent in processing
his separation.  He was not counseled on how his Reserve duty would be
affected.  According to his enlistment contract, he has not completed his
tour of duty and would like to be given the opportunity to do so.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 November 1990.  The application submitted in this case is
dated 3 July 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 was born on 25 June 1969.  He enlisted in the Delayed
Entry Program on 18 November 1987 for 8 years.  In paragraph 1a of his DA
Form 3286-59/1 (Statement for Enlistment United States Army Enlistment
Option US Army Delayed Enlistment Program), he acknowledged that his
enlistment in the U. S. Army Reserve obligated him to a total of 8 years
service in the U. S. Armed Forces, including service in the Reserve
components, unless sooner discharged by proper authority.

4.  The applicant enlisted in the Regular Army on 27 April 1988 for 4
years.  He completed basic training and advanced individual training and
was awarded military occupational specialty (MOS) 44B (Metal Worker).

5.  Between 29 March 1990 and10 October 1990, the applicant was counseled
about nine times for performance/infractions including lack of initiative,
lack of MOS proficiency, failing to prepare for a room inspection, failing
the Army Physical Fitness Test, and failure to repair.  He received one
traffic ticket in November 1989 for failing to stop at a traffic light and
one in March 1990 for speeding.  He had one dishonored check in December
1989 for $700.00 and one in February 1990 for $17.35.

6.  On 9 February 1990, the applicant underwent a mental status evaluation.
 He was found to have the mental capacity to understand and participate in
proceedings.

7.  On 23 August 1990, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for wrongfully using
government telephones for personal long distance calls of under $100.00.
His punishment was to be restricted for 14 days, to perform 14 days of
extra duty, to forfeit $35.31 pay for 2 months, and to be reduced to pay
grade E-2 (reduction suspended for 6 months).  The suspended punishment was
later vacated due to the applicant breaking restriction.

8.  On 23 August 1990, a bar to reenlistment was initiated on the
applicant.  His commander cited the applicant's Article 15, two bad checks,
DA Forms 4856 (General Counseling), and Notice of [traffic] Violation as
the basis for the bar to reenlistment.  The applicant submitted a statement
in his own behalf wherein he acknowledged his mistakes, stated that he had
some good points in his favor, and asking that any chapter or bar to
reenlistment actions be reconsidered.

9.  The bar to reenlistment was approved by the battalion-level commander
on     12 September 1990. The applicant indicated he would appeal the bar
to reenlistment.  In his appeal, he stated that he would not let what had
happened in the past affect his present day as a Soldier and that a new sun
had risen on him.

10.  On 14 September 1990, the applicant completed a separation physical
and was found qualified for separation.

11.  On 27 September 1990, the brigade commander recommended disapproval of
the applicant's appeal to the bar to reenlistment.  He noted that the bar
was a rehabilitative tool and would provide the applicant an opportunity to
prove his worthiness for continued active duty.  On 10 October 1990, the
corps commander denied the applicant's appeal of his bar to reenlistment.

12.  On 11 October 1990, the applicant was counseled for failure to repair.

13.  On 30 October 1990, the applicant's commander initiated separation
proceedings on him under the provisions of Army Regulation 635-200, chapter
13 because of his demonstrated unsatisfactory performance even after formal
counseling.

14.  On 30 October 1990, the applicant acknowledged receipt of the action
and that he had been advised of his right to consult with counsel prior to
making his election of rights.

15.  On 5 November 1990, the applicant’s commander recommended the
applicant be separated under the provisions of Army Regulation 635-200,
chapter 13 for unsatisfactory performance.  His recommendation cited the
applicant's Article 15 and stated that he recommended separation because of
the applicant's demonstrated unsatisfactory performance even after formal
counseling.

16.  On 5 November 1990, the applicant acknowledged that he was afforded
the opportunity to consult with counsel.  His counsel advised him of the
basis for the contemplated separation and its effects and the rights
available to him.  He understood that, since he had less than 6 years total
service, he was not entitled to have his case heard before an
administrative separation board.  He elected not to submit a statement in
his own behalf.  He understood he would be ineligible to apply for
enlistment in the Army for a period of two years after discharge.

17.  On 6 November 1990, the battalion-level commander approved the
recommendation and directed that the applicant be separated with an
Honorable Discharge Certificate.

18.  On 15 November 1990, the applicant was honorably discharged, in pay
grade   E-2, under the provisions of Army Regulation 635-200, chapter 13
for unsatisfactory performance.  He had completed 2 years, 6 months, and 19
days of creditable active service and had no lost time.  He was given an
SPD code of JHJ (involuntary discharge under the provisions of Army
Regulation 635-200, chapter 13 for unsatisfactory performance) and an RE
code of 3.

19.  On 7 April 2004, the Army Discharge Review Board (ADRB) denied the
applicant's request to change his narrative reason for separation.

20.  Army Regulation 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.  The commander exercising special court martial convening
authority is the approval authority for separations under this paragraph.

21.  Army Regulation 635-5 (Separation Documents), Table 2-3 (SPD/RE Code
Cross Reference Table) at the time provided that RE code 3 would be given
when the SPD was JHJ.

22.  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 U.S. 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.

23.  RE code 3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.

24.  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.

25.  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 ABCMR 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 date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  There is no evidence of record and the applicant provides none to show
he was not properly represented by counsel prior to his discharge.  There
is no evidence of record and he provides none to show his company was
negligent in processing his separation.
3.  There was no need to counsel the applicant on how his Reserve duty
would be affected by his separation.  He had acknowledged on his DA Form
3286-59/1 that his enlistment in the U. S. Army Reserve obligated him to a
total of 8 years service unless he was sooner discharged by proper
authority.  The evidence of record shows he was discharged by proper
authority, so he no longer had a service obligation.

4.  The evidence of record shows the applicant was given the proper SPD
code and the proper RE code.  He had indicated that he understood he would
be ineligible to apply for enlistment in the Army for a period of two years
after his discharge.  Since enlistment criteria change, and since an
individual has the right to apply for a waiver, the applicant could have,
and still could, periodically visit his local recruiting station to
determine if he should apply for a waiver.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kah___  __rd____  __jbg___  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.




            __Karen A. Heinz______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106598                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050104                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.02                                  |
|2.                      |100.03                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]