RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 December 2005
      DOCKET NUMBER:  AR20050005091


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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 (RE) code,
characterization of service, and reason for his discharge be upgraded to
allow him to reenlist.

2.  The applicant states, in effect, that he needs these items corrected to
reenlist.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 17 January 2002, the date on his discharge.  The application
submitted in this case is dated 23 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 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.  Following a period in the delayed entry program, the applicant entered
active duty on 6 March 2000.

4.  On 24 April 2000, while in training at the Armor Center, Fort Knox,
Kentucky, the applicant was charged with aggravated assault by
intentionally inflicting grievous bodily harm.

5.  A special court-martial found the applicant guilty of a lesser-included
charge of aggravated assault by a means or force likely to produce death or
grievous bodily harm.

6.  The records indicate that while awaiting sentencing the applicant
became AWOL (absent without leave) on 23 May 2000.

7.  Headquarters, US Army Armor Center and Fort Knox Special Court-Martial
Orders Number 86, dated 16 August 2000, indicates the applicant's sentence
was adjudged on 25 May 2000.  The finding and sentence of confinement for
6 months and to receive a bad conduct discharge (BCD) were approved on this
date.  The order directed the confinement portion of the sentence to be
executed.

8.  The Army Court of Criminal Appeals affirmed the findings and sentence
on 9 March 2001.

9.  Headquarters, US Army Armor Center and Fort Knox Special Court-Martial
Orders Number 125, dated 29 November 2001, directed that, since the
applicant's confinement had been had been served and the provisions of
Article 71 (c), Uniform Code of Military Justice had been complied with,
the applicant's BCD be executed.

10.  The applicant was discharged on 17 January 2002 under the provisions
of Army Regulation 635-200, chapter 3, section IV, by reason of court-
martial, with a BCD.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge)
indicates the applicant had 541 days of lost time for the following
periods; 23 May 2000 – 25 August 2000, 26 August 2000 – 15 June 2001, and
19 June 2001 – 14 November 2001, with 64 days of excess leave, 15 November
2001 – 17 January 2002.  He received an RE code of 4.

12.  On 27 June 2003, the Army Discharge Review Board denied the
applicant's request for an upgrade and change of narrative reason for
separation.

13.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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.

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 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 US 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.

15.  These codes are contained on military discharge documents and
determine whether or not one may reenlist or enlist in a military service
at a later time.  In general, those who receive an RE Code of "1" may
reenlist with no problem. Individuals with an RE Code of "2" may usually
reenlist with various restrictions, or if the circumstances which resulted
in the code no longer apply.  Individuals with an RE Code of "3" can
normally reenlist, but will require a waiver to be processed.  Individuals
with an RE Code of "4" are normally not eligible to reenlist.

DISCUSSION AND CONCLUSIONS:

1.  Record shows the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 27 June 2003.  The date
of application to the ABCMR is within three years of the decision of the
ADRB; therefore, the applicant timely filed.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

3.  An RE code is based on the reason and nature of an applicant's
discharge and the applicant has provided no evidence to warrant a change of
those factors. Therefore, there is no basis for changing the RE code.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TSK___  __JBM__  __RLD __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




                            __       Ted S. Kanamine_______
                                      CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005091                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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