RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20050018136


      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. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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, correction of his 1980 and 1995
reenlistment eligibility (RE) codes, correction of the status of his period
of service in 1994 and 1995, correction of his pay grade to E-5, and
separation pay for the years of 1980, 1986, and 1995.

2.  The applicant states, in effect, that the attached documentation
supports his request.  He contends that all personnel being discharged are
to be given separation pay.

3.  The applicant provides copies of a 19 August 2005 personal statement; a
6 July 1994 Standard Form 68 (Report of Medical Examination); and page 2 of
an undated Ready Reserve obligated service agreement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
while he was serving in the Rhode Island Army National Guard (RIARNG) with
the last discharge being 12 July 1995.  The application submitted in this
case is dated 19 August 2005 but was not received until 22 December 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 are incomplete.  They do not contain copies of
all of his reenlistment documentation for both the RIARNG and his service
in either the Regular Army (RA) or the United States Army Reserve (USAR).

4.  The available records show the applicant enlisted in the USAR on
20 February 1975 under the Delayed Entry Program (DEP).  He entered active
duty on 7 April 1975 and completed basic combat training but not advanced
individual training.


5.  A 27 June 1975 DD Form 214 (Report of Separation) indicates the
applicant was honorably discharged under the Trainee Discharge Program
(Army Regulation 635-200, chapter 5 as then in effect).  He had 2 months
and 21 days of creditable active service with 1 month and 16 days of
inactive service.  No RE code is listed on the DD Form 214 (copy 5).

6.  The applicant enlisted in the Army National Guard on 24 January 1979
and was separated on 23 January 1980.  The National Guard Bureau (NGB) Form
22 (NGB Report of Separation and Statement of Service) indicates the
applicant was honorably discharged under National Guard Regulation (NGR)
600-200, paragraph 7-9a (Completion of Obligated Service).  He had 1 year
of net service for this period with a total of 1 year, 4 months, and 7 days
of service for pay purposes.  It lists his rank and pay grade as PFC E-3.
In the block for the RE code it states NA.

7.  Headquarters, 243rd Military Police Battalion Letter Orders 2-2, dated
25 January 1980, discharged the applicant from the RIARNG effective
29 January 1980.  It lists his rank and pay grade as PFC E-3.

8.  On 4 June 1984 the applicant reenlisted in the RIARNG in pay grade E-3.
 The DD Form 4 (Enlistment/Reenlistment Document) indicates he had 4 months
and 7 days of prior active military service and 1 year of prior inactive
service.

9.  Headquarters, State Area Command RIARNG Letter Orders 125-2, dated
19 June 1986, honorably discharged the applicant from the RIARNG and
transferred him to the USAR Control Group (Annual Training) (Individual
Ready Reserve) effective 3 June 1986.  The discharge authority cited is NGR
600-200, paragraph 7-10a.

10.  The NGB Form 22 indicates he had 1 year of net service for this period
with a total of 2 years, 4 months, and 7 days of service for pay purposes.
In the block for the RE code it states NA.  It lists his rank and pay grade
as PFC E-3.

11.  Department of the Army United States Army Reserve Personnel Center,
St. Louis, Missouri, Letter Orders D901-007426, dated 24 June 1990,
discharged the applicant from the United States Army Reserve (Annual
Training). The authority for this discharge is listed only as Army
Regulation 135-178.

12.  A 12 July 1995 NGB Form 22 indicates the applicant enlisted for one
year on 13 July 1994 and was discharged on 12 July 1995, without personal
notice due to his being absent at the time of discharge.  The NGB Form 22
shows he had 1 year of net service for this period with 5 years, 9 months,
and 9 days of prior Reserve component service and 2 months and 21 days of
active Federal service.  It lists his rank and pay grade as PFC E-3.  This
form does not have an item place for an RE code.

13.  The only document contained in the files that lists the applicant as
an E-5 is a Standard Form 88 (Report of Medical Examination).  This form
lists his pay grade as E-5 but lists his rank as private first class (PFC)
which is pay grade
E-3.

14.  Army Regulation 601-210 determines RA and USAR reentry eligibility and
provides regulatory guidance on the RE codes.  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 Army RE Code of "1" may reenlist in the Army or another service
with no problem.  Individuals with an Army RE Code of "2" may usually
reenlist in the Army or another service 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 in the Army or another
Service, but will probably require a waiver to be processed.  Individuals
with an Army RE Code of "4" are normally not eligible to reenlist in the
Army, nor join another service.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5 of the regulation provided, at
that time, for the administrative separation of individuals who had
demonstrated during the first 180 days of training that they lacked the
necessary motivation, discipline, ability or aptitude to become effective
Soldiers.  This program, known as the Trainee Discharge Program, mandated
the award of an honorable discharge.

16.  Department of Defense Instruction Number 1332.29 provides for the
eligibility to receive separation pay upon involuntary discharge or release
from active duty of Regular and Reserve components service members who have
completed at least 6 years, but fewer than 20 years, of active service.
The service member's separation must be characterized as honorable and he
or she must be fully qualified for retention, but is denied reenlistment or
continuation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no corroborating documentation that there is
an error in the “NA” entry on the 23 January 1980 NGB Form 22.  Further,
since the applicant had additional service subsequent to this time the
point is moot.

2.  The 12 July 1995 NGB Form 22 does not contain an RE code.  As such,
there is no entry to correct.

3.  The applicant has provided no corroborating documentation to support
his contention that his military status, from 13 July 1994 through 12 July
1995, was anything other than what is reflected on the NGB Form 22, dated
12 July 1995.

4.  The records contain no indication that the applicant was recommended
for or promoted to any rank or pay grade above PFC (E-3).  The documents
that indicate a pay grade of E-5 also indicate a rank of PFC.  One or the
other of the two entries is wrong and the preponderance of evidence shows
that the pay grade is in error.

5.  In order to qualify for separation pay the applicant is required to
have served on active duty for a minimum of six years and been
involuntarily separated.  The available evidence does not show that the
applicant had the required active duty in order to qualify for receipt of
separation pay.

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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 July 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 11 July 1998.  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

__RDG _  __PMS___  _LMD___  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.




                                  __       Paul M. Smith__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018136                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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