RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050014451


      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. Joyce Wright                  |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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 be
changed from RE-3 to RE-1.

2.  The applicant states, in effect, that he was issued an RE Code of "3b"
due to 5 days of lost time.  He was arrested on 25 December 1986 and was
released on 29 December 1986.  He was supposed to be on vacation from
25 December to New Year’s Day.  The reason he says he was AWOL (absent
without leave) was because he called his commander and told him he was in
jail.  The commander cancelled his vacation since he could not tell him
when he would return.  He returned to Fort Benning, Georgia, on 29 December
1986 before he was originally supposed to return.  He was told that Uniform
Code of Military Justice (UCMJ) actions were pending until it was decided
if he would be charged by civilian authorities.

3.  One month later, the applicant was advised by the investigator in
charge that charges would not be filed against him since it was not he who
committed the vandalism.  He believed that he should not have been issued
an RE Code of "3b" since he was not charged by the civilian authorities and
no UCMJ action was taken against him.  He adds that a review of his DD Form
214 (Certificate of Release or Discharge from Active Duty) will show that
he was promoted a few months after the incident.  He also states that he
was awarded the Good Conduct Medal within the 3 years served that said
incident occurred which shows proof that no flag was placed against him.

4.  The applicant provides a copy of his DD Form 214 in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 August 1989, the date of his release from active duty (AD).
The application submitted in this case is dated 4 October 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 military records show he enlisted in the Army Reserve
on 25 April 1985, for 8 years, with an established expiration of term of
service (ETS) of 24 April 1993.  He entered active duty (AD) on 16 July
1985, as a parachute rigger (43E), for 4 years, with an ETS date of 15 July
1989.  He was promoted to pay grade E-4 effective 16 September 1987.

4.  The applicant's records contain a copy of DA Form 4187 (Personnel
Action), which shows that he was present for duty (PDY) after being
confined by civil authorities (CCA) effective 25 December 1986.  The
remarks section indicated that he was apprehended at Calipatria,
California, for trespassing.  He was returned to PDY from CCA effective
30 December 1986 and in the remarks column it indicates he was dismissed
without trial.

5.  The applicant's records contain a copy of orders awarding the applicant
his first award of the Good Conduct Medal (GCMDL) for the period 16 July
1985 to 15 July 1988.

6.  The applicant's records contain a DA Form 268 (Report to Suspend
Favorable Personnel Actions [FLAG]), dated 14 July 1989, which shows that
he was flagged for adverse action and under a CID (Criminal Investigation
Division) investigation pending court-martial charges.

7.  Item 21 (Time Lost), of the applicant's DA Form 2-1 (Personnel
Qualification Record), shows that he was CCA from 25 to 29 December 1986
(5 days).

8.  The applicant was released from AD on 15 August 1989, under the
provisions of Army Regulation 635-200, chapter 4, due to completion of
required active service.  He was assigned to the USAR Control Group
(Reinforcement).  He had a total of 4 years and 25 days of creditable
service.  He was issued a separation program designator (SPD) code of
"LBK" and an RE Code of "3b."

9.  The applicant was released from the USAR Control Group and was
honorably discharged on 20 July 1993.

10.  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.

11.  RE-3b applies to Soldiers who have lost time during their last period
of service.  Soldiers are ineligible for enlistment unless a waiver is
granted.

12.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  Certain persons who have received
nonjudicial
punishment are also disqualified.

13.  RE-1 applies to persons completing their ETS who are considered
qualified to reenter the Army.

14.  Army Regulation 635-5-1 prescribes the specific authorities
(regulatory, statutory, or other directives), the reasons for the
separation of members from active military service, and the SPD to be used
for these stated reasons.  The regulation shows that the SPD of "LBK" as
shown on the applicant’s DD Form 214 is appropriate for involuntary release
from active duty (REFRAD) or transfer when the narrative reason for
discharge is "Completion of Required Active Service."

15.  The SPD/RE Code Cross Reference Table, effective 2 October 1989,
provides instructions for determining the RE code for Active Army Soldiers
and Reserve Component Soldiers separated for cause.  It also shows the SPD
code with a corresponding RE code and states that more than one RE code
could apply.  The Soldier’s file and other pertinent documents must be
reviewed in order to make a final determination.  The SPD code of "LBK" had
a corresponding RE code of "1, 1A, or 1C."  The Cross Reference Table, in
step 5, directed that a Soldier's records would be checked and that a RE
Code "3" would be assigned to Soldiers who had any of the following:  (a)
Local bar to reenlistment (less than 18 years active service); (b) Court-
martial conviction;     (c) Denied waiver request (DA Form 3072); (d)
Denied Reenlistment (DA Form 3340); and (5) Reenlistment ineligible (DA
Form 1315).  RE Code "3b" would be assigned to Soldiers who had time lost
through AWOL or confinement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he was issued an RE Code of "3b" due to his
5 days AWOL.  The evidence shows that he was apprehended and CCA for
trespassing on 25 December 1986.

2.  When he informed his commander he was in jail, he alleges that his
commander cancelled his vacation and changed his status to AWOL.


3.  He returned to Fort Benning on 29 December 1986 and he was informed
that UCMJ action was pending against him until a decision was made by civil
authorities if he would be charged.

4.  The applicant was later informed by the investigator that charges would
not be filed since it was not he who committed the vandalism he was
suspected of.

5.  The evidence also shows that a FLAG was initiated for adverse action
and the applicant was under CID investigation pending court-martial
charges.

6.  Notwithstanding the above, the applicant was assigned the appropriate
Reentry Code, "3b," based on the regulatory guidance for Soldiers
separating under the provisions of AR 635-200, Chapter 4, for completion of
required active service.  It is apparent that the applicant's commander
considered the applicant's confinement as lost time during his enlistment
which was indicated on his DA Form 2-1 and issued him an RE Code of "3b"
due to his lost time.

7.  There is no basis upon which a change, of the RE Code on the
applicant's DD Form 214, can be supported.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 August 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 14 August 1992.  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

_JS_____  __cd____  __JM____  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                 |AR20050014451                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19890815                                |
|DISCHARGE AUTHORITY     |AR .635-200, chap 4                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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