RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 September 2006
      DOCKET NUMBER:   AR20060002551


      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. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 on his report of
separation (DD Form 214) be changed from a “3” to a “1”.

2.  The applicant states, in effect, that he got intoxicated during the
last week in the Army and used foul language towards a noncommissioned
officer (NCO) who was acting as the staff duty NCO and the battalion
commander reduced him from the pay grade of E-4 to the pay grade of E-1,
causing him to be barred from reenlistment without a waiver.  He goes on to
state that he apologized to the NCO after he sobered up and that the NCO
also spoke for him along with all of the members of the chain of command.
He also states that he had served honorably throughout his service with no
trouble and that it was wrong to impose this injustice on him at the end of
his service.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 August 2000.  The application submitted in this case is dated
21 February 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 enlisted in the Regular Army in Sacramento, California on 7 August
1997 for a period of 3 years and training in the Infantry career management
field.  He completed his one-station unit training (OSUT) and airborne
training at Fort Benning, Georgia, and was transferred to Fort Bragg, North
Carolina, for assignment to the 505th Parachute Infantry Regiment as a
light weapons infantryman.

4.  The record of nonjudicial punishment (DA Form 2627) is not present in
the available records, however, his records indicate that he was reduced to
the pay grade of E-1 on 22 June 2000.
5.  On 6 August 2000, the applicant was honorably released from active duty
(REFRAD) in the pay grade of E-1, due to the expiration of his term of
service.  He had served 3 years of total active service and was issued a
Separation Code of “LBK” and a RE Code of “3”.

6.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides in pertinent part, that the Separation Code
of “LBK” will be used for Regular Army Soldiers ineligible for, barred
from, or otherwise denied reenlistment who are separated on completion of
enlistment.

7.  Army Regulation 601-280 serves as the authority for reenlistments and
establishes reenlistment control points (RCP).  It provides, in pertinent
part, that soldiers in the pay grade of E-3 at the end of their enlistment
are not authorized to reenlist.  Soldiers who are reduced to the pay grade
of E-3 are not allowed to extend their enlistment.

8.  Army Regulation 601-210 provides the guidance for the issuance of RE
Codes upon separation from active duty.  It states, in pertinent part, that
these codes are not to be considered derogatory in nature, they are simply
codes that are used for identification of an enlistment processing
procedure.  Request for waivers of RE Codes are submitted by the local
recruiting offices and the outcome of such requests are determined by the
needs of the service at the time.

9.  RE-3 applies to persons who are not considered fully qualified for
reentry or continuous service at time of separation, but the
disqualification is waivable.  A local bar to reenlistment or persons who
exceed their retention control point (RCP) for their pay grade are
instances in which a person would be issued a code of RE-3 at the time of
separation.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  While the record of nonjudicial punishment is not present in the
available records, the fact remains that he was reduced to the pay grade of
E-1 approximately 7 weeks prior to his expiration of term of service (ETS),
which caused him to exceed the RCP for his grade and required a waiver in
order to be able to reenlist.

3.  Accordingly, he was properly issued a RE Code of “3”, which requires
him to have a waiver approved to enlist, just as he would have been
required to do had he decided he wanted to reenlist before his ETS.

4.  Given the available facts in this case, there does not appear to be any
basis for changing his RE Code at this time.  However, the applicant is
encouraged to check with local recruiting officials if he desires to
request a waiver to enlist.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 August 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
5 August 2003.  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

____DH _  ____JR _  ___SP  __  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.


                                  _____Susan Powers______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002551                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |20000806                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |4/re code                               |
|1.100.0300              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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