RECORD OF PROCEEDINGS


      IN THE CASE OF:  .


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20050017031


      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 A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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) of RE
"4" be changed to RE "3."

2.  The applicant states, in effect, that his local bar to reenlistment
should have been lifted (removed) at sometime or his RE Code was wrong from
the start.  However, he is not sure why.

3.  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 error or injustice
which occurred on 20 December 1988, the date of his discharge.  The
application submitted in this case is dated 6 January 2005 but was received
for processing on 17 November 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 entered active duty (AD) on
4 February 1986, as a motor transport operator (88M).  He was advanced to
pay grade E-4 effective 4 April 1988.

4.  On 3 March 1987, the applicant received a summarized Article 15,
Uniform Code of Military Justice (UCMJ), for failure to acknowledge a
lawful order issued by a noncommissioned officer.  His punishment consisted
of 14 days restriction and extra duty.

5.  On 28 August 1987, the applicant was punished under Article 15, UCMJ,
for wrongful use of marijuana.  His punishment consisted of a reduction to
pay grade E-2, a forfeiture of pay, and 45 days restriction and extra duty.



6.  On 11 August 1988, the applicant was punished under Article 15, UCMJ,
for wrongful use of marijuana (in the hashish form) and for wrongfully
endeavoring to impede a valid outcome in a command directed urinalysis.
His punishment consisted of a reduction to pay grade E-3, a forfeiture of
pay, and 45 days restriction and extra duty.

7. Item 4 (Assignment Considerations), of his DA Form 2-1 (Personnel
Qualification Record-Part II), indicates that the applicant was not
recommended for further service, effective 11 October 1988.

8.  The applicant was barred from reenlistment on 11 October 1988.  Item 10
(Other Factual and Relevant Indicators of Untrainability or Unsuitability)
of his DA Form 4126-R (Bar to Reenlistment Certificate) indicates that the
applicant demonstrated behavior unbecoming of a Soldier in the US Army.  He
was enrolled in the ADAPCP (Alcohol and Drug Abuse Prevention and Control
Program) after testing positive for THC (Tetrahydrocannabinol) in August
1987.  He successfully completed Track II of the ADAPCP, but his admission
of drug use and his deliberate act to substitute the urine of another
person for his urine were serious acts of misconduct.

9.  On 15 November 1988, the applicant submitted a request to be discharged
prior to his ETS under the provisions of Army Regulation 635-200, Chapter
16, paragraph 16-5b, due to his inability to overcome a locally imposed bar
to reenlistment.  He understood that this request was for his own
convenience and once separated that he would not be permitted to reenlist
at a later date.

10.  The appropriate authority approved the applicant’s request on
21 November 1988.

11.  On 20 December 1988, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 16, paragraph 16-5(b) due to a locally
imposed bar to reenlistment.  He was furnished an honorable discharge.  He
had completed 2 years, 10 months, and 17 days of creditable service.

12.  Item 27 (Reenlistment Code) of the applicant’s DD Form 214 shows the
entry "RE 4" and item 26 (Separation Code) shows the entry, "KGF."  The
narrative reason for the applicant's separation is, "Locally Imposed Bar to
Reenlistment."




13.  Army Regulation 601-280 prescribes the eligibility criteria and
options available in the Army Reenlistment Program.  Chapter 6 of the
regulation provides for barring from reenlistment individuals whose
continued active duty is not in the best interest of the military service.
This chapter specifies that bars will be used when immediate administrative
discharge from active duty is not warranted.  Examples of rationale for
reenlistment disqualification are, but not limited to, AWOL, indebtedness,
recurrent nonjudicial punishment, slow promotion progression, no
demonstrated potential for future service, substandard performance of
duties, and substandard appearance (overweight).

14.  Paragraph 6-5, of Army Regulation 601-280 states, in pertinent part,
that approved bars to reenlistment will be reviewed by the proper unit
commander at least 6 months after the date of approval, and 30 days before
the Soldiers’ scheduled departure from the unit, or separation from the
service.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 16 covers discharges caused by
changes in service obligation.  Paragraph 16-5(b) applies to personnel who
are denied reenlistment and provided that, if they received a locally
imposed bar to reenlistment, and are unable to overcome the bar, they may
apply for immediate separation.

16.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry 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 reentry codes, including RA RE
codes.

17.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as persons with a local bar to reenlistment.

18.  RE-3 applies to persons not qualified for continued Army service and
personnel who are discharged, but the disqualification is waivable.

19.  The SPD/RE Code Cross Reference Table, 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 "KGF" has a corresponding RE code of
"4" or "3."

20.  Army Regulation 635-5-1, in effect at that time, prescribed the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
separation program designators to be used for these stated reasons.  The
regulation shows that the separation program designator "KGF" as shown on
the applicant’s DD Form 214 specifies the narrative reason for discharge as
“Locally Imposed Bar to Reenlistment” and that the authority for discharge
under this separation program designator is "Army Regulation 635-200,
chapter 16, paragraph 16-5b."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly barred from reenlistment for several
disciplinary infractions and for serious acts of misconducts which included
testing positive for THC and a deliberate act to substitute the urine of
another person for his urine.

2.  The locally imposed bar to reenlistment was imposed in compliance with
applicable regulations with no indication of procedural errors which would
tend
to jeopardize his rights.

3.  The evidence shows that the applicant was discharge under the
provisions of Army Regulation 635-200, chapter 16, paragraph 16-5b, due to
a locally imposed bar to reenlistment based upon his request for discharge.
 He was given a RE Code of "4" due to his local bar to reenlistment and for
his record of punishment under Article 15, UCMJ.

4.  The applicant has failed to provide sufficient evidence to show that
his separation, which resulted in his receiving an RE Code of "RE 4", was
in error or unjust.

5.  The applicant asserts that his local bar to reenlistment should have
been lifted (removed) at sometime.  According to regulation, the applicant
was entitled to have his local bar reviewed at least 6 months after the
date of approval, and 30 days before the Soldier's departure from the unit,
or separation from service.  His bar was approved on 17 October 1988 and he
was discharged on 20 December 1988, less than 3 months later; however, it
was the approval of the bar to reenlistment that enabled the applicant to
submit his request for discharge based on this perception that he could not
overcome the bar to reenlistment.
6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 December 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 December 1991.  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

_SLP____  _RML___  __JGH __  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.




                                  ____Shirley L. Powell____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050017031                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19881220                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 16-8                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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