RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            02 MAY 2006
      DOCKET NUMBER:   AR20050012068


      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. William Powers                |     |Chairperson          |
|     |Ms. Sherry Stone                  |     |Member               |
|     |Mr. Randolph Fleming              |     |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 report of separation (DD Form 214) be
corrected to reflect his rank and pay grade as sergeant (Sgt) E-5 and that
his Reentry (RE) Code be changed to a more favorable code that will allow
him to enlist in the National Guard.

2.  The applicant states, in effect, that he desires to enlist in the
National Guard and desires a more favorable RE Code.  He also states that
his rank on his DD Form 214 should reflect the rank and pay grade of Sgt E-
5 because he can find no record of nonjudicial punishment (NJP) reducing
him in grade.

3.  The applicant provides a copy of an oath of extension in the pay grade
of E-5 dated 12 June 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 September 1991.  The application submitted in this case was
received on 19 July 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.  He enlisted in Los Angeles, California, on 31 January 1977, for a
period of 4 years.  He completed his basic combat training at Fort Jackson,
South Carolina, and his advanced individual training as a unit supply
specialist at Fort Lee, Virginia.

4.  He remained on active duty through a series of continuous reenlistments
and was promoted to the pay grade of E-5 on 2 December 1984.

5.  On 24 October 1990, while serving in Saudi Arabia, NJP was imposed
against him for being derelict in the performance of his duties between 13
and 16 October 1990, by failing to conduct proper inventories of ammunition
entrusted to his care.  His punishment consisted of a reduction to the pay
grade of E-4.  He appealed his punishment to the brigade commander and his
appeal was denied on 4 November 1990.

6.  On 10 September 1991, he was honorably discharged in the pay grade of E-
4 on the expiration of his term of service (ETS).  He had served 14 years,
7 months and 10 days of total active service and was issued a separation
code of “JBK” and a RE Code of “RE-3C”..

7.  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
processing into the Regular Army 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 which
reflects that Separation Code “JFK” requires a RE Code of “3”.

8.  RE-3C applies to persons who do not meet the reentry grade and service
criteria of Army Regulation 601-210.  Individuals are ineligible to enlist
unless a waiver is granted.  A waiting period of 2 years from separation is
required before a waiver may be submitted.  Individuals may apply for a
waiver through their nearest recruiting office.  Approval and disapproval
of waivers are normally based on the needs of the Service at the time and
the overall circumstances surrounding the individual’s previous separation.

9.   Amy Regulation 601-208 provides the retention control point (RCP) for
each enlisted pay grade.  The RCP for personnel serving in the pay grade of
E-4 in 1991 was 10 years.  Personnel who were at or exceeded their RCP were
ineligible to extend or reenlist.

DISCUSSION AND CONCLUSIONS:

1.  The applicant clearly was reduced in grade from the pay grade of E-5 to
the pay grade of E-4 on 4 November 1990, when his appeal of the punishment
imposed against him was denied.  Accordingly, he was properly discharged in
the pay grade of E-4 on 10 September 1991.

2.  At the time he was reduced in grade, based on the amount of service he
had, he immediately exceeded the RCP for his pay grade.  Accordingly, he
was properly assigned a RE Code of “RE-3C”.


3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 September 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 9 September 1994.  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

___WP__  ___SS __  ___RF___  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.




                                  _____William Powers_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050012068                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060502                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19910910                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |ETS/RCP                                 |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |4/RE CODE                               |
|1.100.0300              |                                        |
|2.110.0000              |189.CORR 214                            |
|3.133.0000              |322/RANK                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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