RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050002219


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 Reenlistment (RE) Code
associated with his honorable discharge of 31 March 1997 be changed from RE-
3 to RE-1 He also requests, in effect, that permission be granted for him
to visit a federal medical facility for the purpose of undergoing a medical
evaluation to reassess his medical fitness in support of his request to
change his discharge.

2.  The applicant states, in effect, that his medical discharge was
improper and he requests justice.  He further states that the medical
evaluation on which his discharge was based was fraudulent and conducted
with prejudice and hate.

3.  The applicant provides the following documents in support of his
application: self-authored statements, dated 28 March 2005, 25 January
2005, and 31 May 2001; DD Form 293 (Application for the Review of Discharge
or Dismissal from the Armed Forces of the United States), dated 27 January
2005; California Army National Guard (CA ARNG), Office of the Staff Judge
Advocate letter, dated
14 March 1997, along with copies of documents relating to his discharge;
Northeastern University transcripts, dated 20 October 1992; Cal Poly Pomona
Student Grade Results, dated 28 January 2005; an email message to the U.S.
Equal Employment Opportunity Commission, dated 1 April 2004; a letter from
his Personnel Administration Supervisor, dated 13 April 1993; a letter from
the applicant, dated 4 June 1993; and Aptitude Information, dated 7 October
1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 March 1997, the date of his discharge.  The application
submitted in this case is dated 27 January 2005.

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 limitations 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 records show that he enlisted in the Army National
Guard on 14 October 1992, served in military occupational specialty (MOS)
71D (Legal Specialist), and the highest rank he attained was specialist/pay
grade E-4.
4.  The applicant's records contain Headquarters, CA ARNG, Sacramento,
California, memorandum, dated 20 August 1996, which shows that on 26 July
1996, the applicant was medically evaluated at Camp Roberts by the colonel
serving as the Neuropsychiatric Consultant.

5.  The applicant's records contain Headquarters, CA ARNG, Sacramento,
California, memorandum, dated 31 December 1996, which shows that the
Director, Military Personnel, notified the applicant that the CA ARNG
Medical Evaluation Board (MEB) had reviewed his medical records and found
the applicant unfit for retention in the CA ARNG.  This document also
advised the applicant of his right to contest the findings of the MEB and
that his request for review must be submitted not later than 31 March 1997.

6.  The applicant's records contain State of California, Office of the
Adjutant General, Sacramento, California, Orders 063-573, dated 4 March
1997, which shows the applicant was discharged from the ARNG and as a
reserve of the Army on 31 March 1997.

7.  The applicant's records contain NGB Form 22 (Report of Separation and
Record of Service), with an effective date of 31 March 1997, which shows
the applicant was discharged from the CA ARNG.  This document shows the
authority and reason as Section 260, California Military and Veterans Code
(M/VC) and National Guard Regulation (NGR) 600-200 (Enlisted Personnel
Management), paragraph 8-26y (Medically Unfit for Retention Standards).
This document also shows a Reenlistment Eligibility (RE) Code of 3;
character of service as honorable; and that a NGB Form 55 (Honorable
Discharge Certificate) was issued.

8.  The applicant provides self-authored statements in support of his
request to change the authority and reason for his discharge and the
associated RE Code.  The applicant also provides copies of college
transcripts and grade reports which show his academic achievements from
January 1989 to May 1997; a letter in response to his request to be
promoted to sergeant/pay grade E-5; his request to attend Officer Candidate
School; and documents relating to his discharge.

9.  NGR 600-200, paragraph 8-26y provides for the discharge from State ARNG
and/or Reserve of the Army of Soldiers medically unfit for retention
standards of chapter 3, Army Regulation 40-501 (Standards of Medical
Fitness).  This document provides, in pertinent part, that if a commander
suspects a Soldier may not be medically qualified for retention, he or she
will direct the Soldier to present him or herself for a medical examination
in accordance with NGR 40-501 (Standards of Medical Fitness).  If retention
is not recommended, a request for discharge will be submitted to the State
Adjutant General.  This document also shows that Soldiers processed for
discharge under this provision will be assigned a RE Code of 3.

10.  Table 8-1 (Definition of Reenlistment Codes) of NGR 600-200 shows that
RE Code 3 will be assigned when a Soldier is eligible for reenlistment only
with a waiver.

11.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) provides, in pertinent part, that RE codes are used for
administrative purposes only, and that applicants should be advised that RE
codes are not to be considered derogatory in nature, they simply are codes
used for identification of an enlistment processing procedure.  This
document also provides procedures for the verification of an applicant's
prior service.  (Applicants who are former members of the Armed Forces are
categorized as prior service personnel.)  It states, in pertinent part,
that, "Applicants who are thought to have had, or who claim to have had,
prior service in any U.S. Armed Force will not be enlisted in the Regular
Army or U.S. Army Reserve until their prior service, if any, is verified".

12.  The governing Army regulation further provides that prior service Army
personnel will be advised that RE codes may be changed only if they are
determined to be administratively incorrect.  Applicants who have correct
RE codes will be processed for a waiver at their request if otherwise
qualified and waiver is authorized.  No requirement exists to change an RE
code to qualify for enlistment.  Only when there is evidence to support an
incorrect RE code or when there is an administrative error will an
applicant be advised to request a correction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge was fraudulent
and that the examining physician used his position and credentials to hurt
the applicant, rather than help him.  The applicant further contends that,
as a result of his unjust discharge, his RE Code should be changed from RE-
3 to RE-1 because he wants to reenter the Army National Guard.  However,
the applicant provides insufficient documentary evidence to support his
assertions regarding the physician who conducted his medical evaluation,
that his discharge was improper or unjust, or that his RE Code is
incorrect.


2.  The evidence of record shows that, as directed by his commander, the
applicant was medically evaluated on 26 July 1996.  The recommendation of
the examining medical official indicated, "Unfit for continued service in
the CA ARNG due to psychiatric illness that precludes performing his
military duties".

3.  The evidence of records shows that on 31 December 1996 the Director,
Military Personnel, CA ARNG, advised the applicant that the MEB found him
unfit for retention in the CA ARNG and of his right to contest the findings
of the MEB not later than 31 March 1997.  In addition, in a letter dated 14
March 1997, the applicant was reminded by Office of the Staff Judge
Advocate, CA ARNG, of his right to a review of the findings of the MEB.
This document also shows that the applicant was provided advice on how to
handle his appeal.  However, there is no evidence that the applicant
submitted an appeal of the findings of the MEB.

4.  The evidence of record shows that the applicant’s separation processing
was accomplished in accordance with the applicable regulation and the
rights of the applicant were fully protected throughout the separation
process.  This Board also presumes administrative regularity in the
processing of the applicant's discharge.  There is nothing in the available
records or in anything submitted by the applicant to overcome that
presumption.  As a result, his discharge was proper and equitable, and the
RE-3 code he received was appropriately assigned based on the authority and
reason for his separation.

5.  The Board notes the applicant's academic achievements that are
documented by his college transcripts and grade reports, and the interest
the applicant expressed in being promoted to sergeant and attending Officer
Candidate School while serving in the CA ARNG.  However, this documentary
evidence is not pertinent to the applicant's request for a change in his
discharge and RE Code.

6.  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.

7.  The applicant is advised that, although no change is being recommended
to his RE Code, this does not mean that he is disqualified from reentry
into the Army National Guard or the U.S. Army Reserve, as the RE-3 code he
was assigned is waivable.  If the applicant still desires to reenter the
Army National Guard, he should contact a local recruiter to determine his
eligibility and/or request assistance in processing a waiver through
appropriate administrative
channels.  Those individuals can best advise a prior service member as to
the needs of the Army National Guard and are required to process waivers of
RE codes.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1997; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 March 2000.  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

__TAP __  __ENA __  __JRS __  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.




                                  ____ THOMAS A. PAGAN ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002219                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19970331                                |
|DISCHARGE AUTHORITY     |NGR 600-200, Paragraph 8-26y            |
|DISCHARGE REASON        |Medically Unfit for Retention Standards |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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