RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:     14 December 2005
      DOCKET NUMBER:  AR20050003831


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 (RE) Code on his report of
separation (DD Form 214) be changed from a “4” to a more favorable code
that will allow him to enlist in the Minnesota Army National Guard
(MNARNG).

2.  The applicant states, in effect, that he was accused and charged with
driving under the influence (DUI), driving while intoxicated (DWI) and
reckless driving in December 1999, while assigned to Fort Myer, Virginia.
As a result, he received a General Officer Memorandum of Reprimand (GOMOR)
and subsequently was selected for separation under the Qualitative
Management Program based on the GOMOR.  He goes on to state that he
received legal counseling during his separation and at no time did the
counsel inform him that he would become ineligible for further military
service.  He continues by stating that had he known at the time, he would
have appealed his separation.  He also states that he did not believe he
was guilty of the charges against him and elected to take his case to
trial.  After spending 16 hours in court, he was acquitted of all charges
because evidence could not be provided to support the charges.  He further
states that since his discharge he has become a respected member of his
community and has been elected to public office.

3.  The applicant provides copies of his evaluation reports, a copy of his
DD Form 214, a copy of the court docket for his case, and documents showing
him being elected to office.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 January 2001.  The application submitted in this case is
dated 6 March 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 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.  He enlisted on 15 May 1990 in Minneapolis, Minnesota, for a period of 3
years and 14 weeks, training in the infantry career management field and
enrollment in the Army College Fund.  He completed his one-station unit
training (OSUT) at Fort Benning, Georgia, and was transferred to Fort Drum,
New York.

4.  He remained on active duty through a series of continuous reenlistments
and was promoted to the rank of sergeant on 1 January 1993.  He deployed to
Somalia for 5 months in 1993 and to Haiti for 2 months in 1994.

5.  He was transferred to the 3rd Infantry Regiment (The Old Guard) at Fort
Myer on 1 July 1996 and was promoted to the pay grade of E-6 on 18 October
1996.

6.  On 5 December 1999 at 0015 hours, the applicant was stopped at Hatfield
Gate, Fort Myer, during a 100 % identification check and the military
policeman detected a strong odor of alcohol emitting from the applicant.
The applicant was administered a series of field sobriety tests which he
performed poorly.  He was placed under apprehension and transported to the
military police (MP) station where he was administered a blood alcohol
content (BAC) test on the Intoxilizer 5000, that resulted in a .12 BAC.  He
was cited with DUI, DWI and reckless driving, all with mandatory court
appearances on 10 March 2000.

7.  On 20 January 2000, the applicant received a GOMOR from the Commanding
General of the Military District of Washington for operating a motor
vehicle while his BAC was above the legal limit.  The applicant was advised
that the GOMOR was imposed as an administrative measure and that he could
submit matters in his own behalf before a final filing decision was made.

8.  On 26 January 2000, the applicant elected not to submit a statement in
his own behalf and the imposing official (a major general) directed that
the GOMOR be filed in his Official Military Personnel File (OMPF).

9.  On 31 August 2000, a memorandum was dispatched to the applicant
informing him that the Calendar Year 2000 Sergeant First Class Promotion
Selection Board had determined that he should be barred from reenlistment
based on the presence of the GOMOR in his OMPF.  The applicant was serving
in Korea at the time.

10.  On 2 January 2001, while still in Korea, he was honorably discharged
under the provisions of Army Regulation 635-200, paragraph 16-8, due to
reduction in force.  He had served 10 years, 7 months and 18 days of total
active service and was issued a RE Code of 4.

11.  A review of the available records fails to show any indication that he
appealed the bar to reenlistment under the QMP or that he applied to the
Department of the Army Suitability Evaluation Board (DASEB) to have the
GOMOR transferred to the restricted fiche of his OMPF.

12.  The court docket submitted by the applicant indicates that he was
found not guilty of all charges on 13 April 2000.

13.  Army Regulation 635-200 sets forth the basis authority for the
separation of enlisted personnel.  Chapter 16 covers discharges caused by
changes in service obligations.  Paragraph 16-8 applies to personnel denied
reenlistment and provides that Soldiers may be separated prior to
expiration of term of service when authorization limitations, strength
restrictions, or budgetary constraints require the size of the enlisted
force to be reduced.  The Secretary of the Army, or his designee, will
authorize voluntary or involuntary early separation under authority of
title 10, United States Code, sections 1169 or 1171.  Early separation
under this paragraph is for the convenience of the government and will be
characterized as honorable.

14.  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 reason for discharge.  Army Regulation 601-210 covers
eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the USAR.  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.

15.  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 such as a Department of the Army imposed bar to
reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  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 that requirement.

2.  The bar to reenlistment under the QMP was properly imposed in
accordance with the applicable regulations based on the GOMOR that was
imposed against the applicant.

3.  The applicant had a Department of the Army imposed bar to reenlistment
at the time of his separation and was not qualified for reenlistment at the
time of separation.  Accordingly, he was properly issued an RE Code of RE-4
in accordance with the applicable regulations

3.  Although the applicant was successful in civil court regarding the
charges against him, that in itself does not negate the basis for the GOMOR
or the bar to reenlistment that he subsequently received.

4.  The applicant offered no mitigating circumstances when he was afforded
the opportunity to submit matters in his own behalf by the GOMOR imposing
official nor did he appeal the bar to reenlistment under the QMP.
Accordingly, his contentions at this time are not sufficiently mitigating
to warrant the relief he is requesting.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 January 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 January 2004.  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

__MJF___  __LGH__  _JS___ _  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.




            _____John Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003831                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |4/RE CODE                               |
|1.100.0300              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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