RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      25 July 2006
      DOCKET NUMBER:  AR20060001705


      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. Allen L. Raub                 |     |Chairperson          |
|     |Ms. LaVerne Douglas               |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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. 1.  The applicant requests that his Reenlistment (RE) Code be changed to
a  more favorable code that will allow him to enlist in the Texas Army
National Guard (TXARNG), that his bar to reenlistment be removed and that
his report of separation (DD Form 214) be corrected to reflect that he
qualified as an expert with the M16 rifle.

2.  The applicant states that he enlisted for training of choice, the Army
College Fund and a cash enlistment bonus and was subsequently denied the
training of choice and college fund options.  He goes on to state that he
fought for his rights and made someone mad, which resulted in his being
barred from reenlistment.  He continues by stating that all he wanted was
for his contract to be honored and believes that he was railroaded into his
situation.  He continues by stating that he served his country with
distinction and never caused any problems until his contract was breached.
He also states that he requested to be returned to the TXARNG and was
denied for no legitimate reason.  He also states that he is now a Texas
peace officer with a masters degree in criminal justice management and he
desires to enlist in the TXARNG.

3.  The applicant provides no supporting documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 April 1986.  The application submitted in this case is dated
17 January 2006.

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 initially enlisted in the Marine Corps Reserve (USMCR) in Dallas,
Texas, on 21 June 1982.  He served in the USMCR until 28 September 1983,
when he enlisted in the TXARNG for a period of 4 years, 10 months and 2
days.  He was promoted to the pay grade of E-3 on 1 June 1984.

4.  On 9 November 1984, he enlisted in the United States Army Reserve
(USAR) under the Delayed Entry Program (DEP), with an active duty date of
20 February 1985.  The applicant did not make his report date of 20
February 1985 and was granted an extension to 19 April 1985.  At the time
he was granted the extension, he signed a statement whereas he acknowledged
that if he failed to report on 19 April 1985, he would lose his entitlement
to his original enlistment option.  He failed to report on 19 April 1985
and he was transferred to the USAR Control Group (Individual Ready Reserve)
effective 8 May 1985.  Accordingly, his enlistment options were voided on
his contract.

5.  Meanwhile, the applicant went to Houston, Texas and enlisted in the
USAR under the DEP for a period of 8 years.  At the time of his enlistment
he only revealed his service in the USMCR.  He enlisted for training as an
infantryman, the Army College Fund and a $5,000 enlistment bonus, with an
active duty date of 30 August 1985, for a period of 4 years.

6.  He enlisted in the Regular Army on 30 August 1985 in the pay grade of E-
1 and was transferred to Fort Benning, Georgia, to undergo his one-station
unit training (OSUT) as an infantryman.  On 30 September 1985, he submitted
a pay inquiry indicating that he had signed up for the G.I. Bill; however,
no deductions were being made and that he should be paid as an E-2.  The
applicant was informed that prior service personnel were not eligible for
the G.I. Bill and that he needed to furnish documentation to support pay as
an E-2.

7.  He completed his training, was paid his enlistment bonus on 15 November
1985, and was transferred to Baumholder, Germany on 9 December 1985, where
he was assigned to a mechanized infantry company.

8.  The applicant was repeatedly counseled on his poor performance,
discipline, poor attitude, poor appearance, lack of initiative, failure to
go to his place of duty, his untrainability (failed military drivers test
four times), his inability to handle his personal problems, and failure to
respond to counseling.

9.  On 7 February 1986, the unit commander submitted a request to bar the
applicant from reenlistment based on his failure to respond to counseling,
poor performance, untrainability and being absent from his place of duty.

10.  The applicant elected to submit a statement in his own behalf whereas
he asserted that his financial situation since entering the Army had gotten
worse and was making his life in the Army very stressful. The appropriate
authority approved the bar to reenlistment on 11 February 1986.

11.  On 13 March 1986, the applicant submitted a request for discharge
under the provisions of Army Regulation 635-200, paragraph 16-5, due to his
inability to overcome the circumstances that served to bar him from
reenlistment.  In his request he indicated that he understood that an
unearned portion of his enlistment bonus would be recouped and that once
separated, he would not be allowed to enlist at a later date.

12.  On 20 March 1986, nonjudicial punishment was imposed against him for
leaving his place of duty on the defensive perimeter without authority.
His punishment consisted of a forfeiture of pay (suspended for 6 months),
extra duty and restriction.

13.  The appropriate authority approved his request for discharge on 23
April 1985 and directed that he be furnished an Honorable Discharge
Certificate.

14.  Accordingly, he was honorably discharged on 30 April 1986, under the
provisions of Army Regulation 635-200, paragraph 16-5B, due to a locally
imposed bar to reenlistment.  He was issued a RE Code of “4”.

15.  There is no indication in the available records to show that the
applicant ever raised the issue of a breech of his enlistment contract,
other than the initial pay inquiry done while he was in OSUT, nor is there
any evidence to suggest that he requested discharge due to an unfulfilled
enlistment contract or that it had anything to do with his bar to
reenlistment.

16.  A review of his records shows that the applicant qualified as a
marksman with the M16 rifle both in his USMCR basic training and his OSUT
at Fort Benning.

17.  Army Regulation 601-280, in effect at the time, prescribes the
eligibility criteria and options available in the Army Reenlistment
Program.  Chapter 6 of that 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
include, but are not limited to, AWOL, indebtedness, recurrent nonjudicial
punishment, slow promotion progression, no demonstrated potential for
future service, and substandard performance of duties.

18.  Army Regulation 635-200 sets forth the basis authority for the
separation of enlisted personnel.  Chapter 16 covers the discharges caused
by changes in service obligations.  Paragraph 16-5 applies to personnel
denied reenlistment and provides that soldiers who receive DA imposed or
locally imposed bars to reenlistment, and who perceive that they will be
unable to overcome the bar may apply for immediate discharge.

19.  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 9, 10,
13, 14, and 16 of Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s bar to reenlistment was imposed in compliance with the
applicable regulation with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The applicant had sufficient time to overcome the bar to reenlistment
but instead he elected to separate from the service rather than to attempt
to overcome the circumstances of the bar.  Accordingly, there is no basis
to remove the bar to reenlistment.

3.  Accordingly, he was properly discharged at his own request based on his
perceived inability to overcome the bar to reenlistment.  However, he was
incorrectly issued a RE Code of “4” and should instead have been given a RE
Code of “3”.  Accordingly, it would be in the interest of justice to
correct this administrative error at this time.

4.  The applicant’s contention that he was awarded the Expert Marksmanship
Badge with M16 Rifle Bar has been noted and found to be without merit.  The
evidence of record shows that he qualified as Marksman with the M16 rifle
and that is correctly annotated on his DD Form 214.  Therefore, absent
evidence to show otherwise, there appears to be no basis to change that
entry.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_ALR ___  __LD____  __PMT__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing his RE Code as
a “3” instead of a “4” as currently reflected on his DD Form 214.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the bar to reenlistment and changing his Marksman Marksmanship
Badge to an Expert Marksmanship Badge.




                            _____Allen L. Raub _______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001705                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060725                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(PARTIAL GRANT )                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |                                        |
|1.110.0000/189/DI       |                                        |
|2.110.0200/191/R&a      |                                        |
|3.100.0300/4/RE CODE    |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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