RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060003780


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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 Eligibility (RE) code on his DD
Form 214 (Certificate of Release or Discharge from Active Duty) be changed
from
RE-4 to RE-3.

2.  The applicant states the reason for his discharge was reduction in
force with a separation code of “JCC.”  He states that the out-processing
personnel failed to pay attention to detail or deliberately placed it on
file.  He would like to have his RE code changed because his goal is to
rejoin the military and further serve his country.  In order for this to
happen, he states he would need at least a waivable RE code, which it
should have been initially.

3.  The applicant provides a copy of his DD Form 214 and his Honorable
Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 July 1999.  The application submitted in this case is dated
10 March 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.  The applicant initially enlisted in the Regular Army on 20 June 1984.
He completed basic training and advanced individual training and was
awarded military occupational specialty 31K (Combat Signaler).  He was
promoted to specialist four on 1 September 1985.

4.  On 6 December 1985, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful
in language towards his superior noncommissioned officer.  His punishment
consisted of 14 days restriction; 14 days extra duty; and a reduction to
pay grade E-3 (suspended for a period of 120 days).

5.  On 12 March 1986, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being disorderly by being involved in a verbal and
physical altercation.  His punishment consisted of a reduction to private E-
2 (suspended for 90 days); a forfeiture of $100.00 pay for one month; 14
days extra duty, and 14 days restriction.

6.  On 9 September 1986, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for disobeying a lawful command from his superior
commissioned officer and for being derelict the performance of his duties.

His punishment consisted of a reduction to private E-2 (suspended until
31 December 1986); a forfeiture of $362.00 pay for one month (suspended
until 31 December 1986); and 30 days extra duty.

7.  He was promoted to specialist four on 1 January 1987.

8.  The applicant was discharged on 15 April 1987 for the purpose of
immediate reenlistment.

9.  The applicant reenlisted on 16 April 1987 and continued to serve on
active duty through two reenlistments.

10.  He was promoted to sergeant on 1 January 1991 and to staff sergeant on
1 September 1993.

11.  On 13 June 1997, the applicant was convicted by a special court-
martial, contrary to his plea, of maltreatment of a subordinate.  He was
sentenced to a reprimand and a fine to the United States in the amount of
$500.00.

12.  In a 10 August 1998 memorandum, the applicant was notified that the
Calendar Year (CY) 1998 Sergeant First Class/Advanced Noncommissioned
Officer Course (ANCOC)/Promotion Selection Board reviewed his Official
Military Personnel File (OMPF) and the board determined that he be barred
from reenlistment.  There is no record of the applicant's Statement of
Option (DA Form 4941-R).

13.  The appeal of the Department of the Army (DA) imposed bar to
reenlistment was disapproved on 31 March 1999 by a Standby Advisory Board.
The appropriate authority directed that the discharge would be under the
provisions of Army Regulation 635-200, paragraph 16-8 and would occur no
later than 31 July 1999.  The narrative reason would be placed on the DD
Form 214 as “Reduction in Force”; the RE code as “RE-4”; the separation
program designator (SPD) as “JCC”; and the service was characterized as
“Honorable.”

14.  The applicant was honorably discharged on 31 July 1999 under the
provisions of Army Regulation 635-200, paragraph 16-8 due to Reduction in
Force.

15.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific
authorities (regulatory, statutory, or other directives), the reasons for
the separation of members from active military service, and the SPD codes
to be used for these stated reasons.  The regulation, in effect at the
time, shows that the SPD code “JCC” as shown on the applicant’s DD Form 214
specifies the narrative reason for separation as an involuntary discharge
for “Reduction in Force” and that the authority for separation under this
separation program designator is
“AR 635-200, Paragraph 16-8.”

16.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5
(Separation Documents), in effect at the time, established RE code 4 as the
proper reentry code to assign to Soldiers separated under the provisions of
Army Regulation 635-200, paragraph 16-8 based on a DA bar to reenlistment.

17.  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 and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.  The regulation states that
RE–3 applies to persons not qualified for continued Army service, but the
disqualification is waivable.

18.  RE code 4 applies to persons not qualified for continued Army service
and the disqualification is not waivable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows a DA bar to reenlistment was imposed
against the applicant.  As a result, he was discharged from active duty on
31 July 1999 under the provisions of Army Regulation 635-200, paragraph 16-
8 based on Reduction in Force.

2.  The applicant was separated with a separation code of "JCC" and was
properly assigned an RE code of RE-4 in accordance with the governing
regulation in effect at the time.

3.  The RE code of "4" issued to the applicant is not waivable and does not
allow him to continue Army service.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the reentry code issued to him was administratively
incorrect, in error or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 30 July 2002.  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

PM______  DG______  RV______  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.




                                  Patrick McGann________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003780                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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