RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JUNE 2006
      DOCKET NUMBER:   AR20050016766


      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:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. Chester Damian                |     |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 Reentry (RE) Code be changed from a “3”
to a “1”.

2.  The applicant states, in effect, that he applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge and it was granted;
however, that board failed to change his RE Code to a “1”.

3.  The applicant provides a copy of his report of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 November 1998.  The application submitted in this case is
dated 22 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.  He enlisted in the United States Army Reserve (USAR) in San Antonio,
Texas on 12 October 1993, for a period of 8 years under the Delayed Entry
Program (DEP).  He enlisted in the Regular Army on 6 June 1994 for a period
of 3 years and training as a ground surveillance systems operator.  He
completed his basic combat training at Fort Knox, Kentucky and his advanced
individual training at Fort Huachuca, Arizona.  He was transferred to Fort
Drum, New York for his first assignment and was advanced to the pay grade
of E-4 on 1 April 1996.

4.  On 4 June 1996, he reenlisted for a period of 3 years and assignment to
Fort Hood, Texas.  He departed for Fort Hood on 27 December 1996 and was
assigned to a Military Intelligence company.

5.  The applicant was counseled in March 1978 regarding his failure to pay
his debts and for writing bad checks.

6.  On 28 April 1998, he was arrested by civil authorities for writing bad
checks totaling $648.71 and was returned to military control at Fort Hood
on the same day.

7.  He was counseled on at least four occasions in 1997 and 1998 regarding
his  failure to pay his debts and the need for financial counseling.

8.  Meanwhile, on 14 May 1998, the applicant entered into a plea bargain
agreement with the Bell County Attorney’s office and plead guilty to the
charges of issuance of bad checks and theft with worthless checks.  His
sentence consisted of a $100.00 fine, court costs, and restitution of
$648.71, to be made in payments of $75.00 twice a month.  His sentence also
stipulated that he had to make the payments in person.

9.  On 7 October 1998, the applicant’s commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 14 for misconduct – pattern of misconduct.
 After consulting with counsel, the applicant waived his rights and elected
not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on
23 October 1998 and directed that he be furnished a General Discharge
Certificate.

11.  Accordingly, he was discharged under honorable conditions on 24
November 1998, under the provisions of Army Regulation 635-200, paragraph
14-12B, for misconduct.  He had served 4 years, 10 months and 19 days of
total active service and was issued a RE Code of 3.

12.  He applied to the ADRB for an upgrade of his discharge on 26 April
2000 contending that his discharge was unjust because his record was
unblemished and that he was discharged based on his personal affairs.  The
ADRB determined that the length and quality of his service mitigated his
misconduct and found that the characterization of his service was
inequitable.  The ADRB determined that the reason for his discharge was
proper and equitable and voted unanimously to upgrade his discharge to
fully honorable.  That board also voted unanimously not to change the
reason for his discharge on 7 June 2000.

13.  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.

14.  RE-3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.  Certain persons who have received
nonjudicial punishment are so disqualified, as are persons with bars to
reenlistment, and those discharged under the provisions of chapters 5, 9,
10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years
from separation is required before a waiver may be submitted.  Persons are
encouraged to apply for a waiver at the nearest recruiting office.  Waivers
for RE Codes are normally based on the needs of the service at the time of
application.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
include minor infractions, a pattern of misconduct, frequent involvement in
incidents of a discreditable nature with civil and/or military authorities,
commission of a serious offense, conviction by civil authorities, desertion
or absence without leave.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no procedural errors, which
would tend to jeopardize his rights.  Notwithstanding the action by the
ADRB, the type of discharge directed and the reasons therefore were
appropriate considering all of the facts of the case.

2.  The applicant was separated under the provisions of Army Regulation
   635-200, chapter 14; therefore; he was properly issued an RE Code of RE-
3 in accordance with the applicable regulations.

3.  The applicant has failed to show through the evidence submitted with
his application or the evidence of record that he was issued the wrong RE
Code at the time of his separation.

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 that
requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 June 2000;
therefore, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 6 June 2003.  However, 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

___LS  __  ___RS __  ____CD _  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.




                                  _____Linda Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200580016766                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19981124                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 14, Para 14-12B          |
|DISCHARGE REASON        |MISCONDUCT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |4/RE CODE                               |
|1.100..0300             |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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