RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060008799
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. Gerard W. Schwartz
Acting Director
M
Analyst
The following members, a quorum, were present:
Mr. Kenneth L. Wright
Chairperson
Mr. Chester A. Damian
Member
Ms. Ernestine I. Fields
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 be changed from RE-4 to RE-1.
2. The applicant states the RE-4 code entry is a typographical error and he would like to have it corrected.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 2 September 1984, the date of his separation from active duty. The application submitted in this case is dated 17 May 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 applicants failure to timely file.
3. The record shows the applicant entered active duty on 3 September 1981, completed training, and was awarded the military occupational specialty (MOS) 68G1O (Aircraft Structural Repairer).
4. The applicant was advanced to private first class on 3 September 1982.
5. On 19 August 1983, the applicant received nonjudicial punishment (NJP) under Article 15 Uniform Code of Military Justice, for illegal use of marijuana. His punishment was reduction in grade to private two (PV2), a forfeiture of $100.00 pay per month for 1 month, and 30 days of extra duty.
6. On 23 May 1984 his command imposed a bar to promotion.
7. On 2 Sept 1984, the applicant was honorably separated from active duty, as a PV2, and transferred to the Army Reserve (USAR) Control Group (Reinforcement). He had 3 years of creditable service with no lost time noted.
8. His DD Form 214 lists the narrative reason for separation as expiration of term of service, the separation code as LBK, and the RE code as an RE-4.
9. Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions [Flags]), paragraph 1-14 states, in pertinent part, that when a flag is properly imposed, promotion and reenlistment are prohibited.
10. Army Regulation 601-280 (Personnel Procurement Army Retention Program) prescribes criteria for the Army Retention Program. In pertinent part it states that the reenlistment eligibility (RE) codes contained on military discharge documents determine whether or not one may reenlist or enlist in a military service at a later time. In general, those who receive an RE Code of "1" may reenlist in the Army or another service with no problem. Individuals with an RE Code of "2" may usually reenlist in the Army or another service with various restrictions, or if the circumstances which resulted in the code no longer apply. Individuals with an RE Code of "3" can normally reenlist in the Army or another Service, but will probably require a waiver to be processed. Individuals with an Army RE Code of "4" are normally not eligible to reenlist in the Army, nor join another service. An RE-4 applies to persons separated with a nonwaivable disqualification, this includes persons separated in pay grade E-2 and below and those separated with a Department of the Army imposed bar to reenlistment in effect.
DISCUSSION AND CONCLUSIONS:
1. The applicant was flagged for promotion and was in pay grade E-2 at the time of his separation from active duty. Both of these factors result in his being disqualified for reenlistment and the RE 4 is appropriate.
2. 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.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 September 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 September 1987. 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
__KLW__ __EF____ __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.
__ Kenneth L. Wright____
CHAIRPERSON
INDEX
CASE ID
AR20060008799
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
)
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.03
2.
3.
4.
5.
6.
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