RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060012021 


	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.


x
	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 to a code that will allow him to again enlist in the Army. 

2.  The applicant states that he received an RE Code of 3 at the time of his discharge and he desires to have it changed to a code that will allow him to enlist in the Army again.  He goes on to state that he comes from a military family and he desires to make his family and country proud of his military service.  He also states that he was young and stupid at the time and made a regretful mistake.  He further states that in the past 6 years he has come to realize what his mistake cost him and he desires nothing more than a chance to correct the mistake.    

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 11 October 2000.  The application submitted in this case is dated 7 August 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 was born on 12 July 1981 and enlisted in the Regular Army in Nashville, Tennessee on 3 March 2000, for a period of 4 years, for training as an intelligence analyst and a cash enlistment bonus.  At the time of his enlistment he acknowledged that he understood that if he was identified for either alcohol or drug abuse, including the use or possession of marijuana, appropriate disciplinary and/or administrative action may be taken against him, which included trial by court-martial or administrative separation from the Army.   

4.  He completed his basic combat raining at Fort Leonard Wood, Missouri and was transferred to Fort Huachuca, Arizona to undergo his advanced individual training (AIT).  

5.  On 20 September 2000, while still in AIT, nonjudicial punishment was imposed against the applicant by the brigade commander for the wrongful use and distribution of Ecstacy.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty and restriction.
  
6.  On 27 September 2000, the applicant’s commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12(c) for misconduct due to his wrongful use and distribution of illegal drugs.  

7.  After consulting with counsel, the applicant waived all of is rights and elected not to submit a statement in his own behalf.

8.  The appropriate authority (a major general) approved the recommendation for discharge on 3 October 2000 and directed that the applicant be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 11 October 2000, under the provisions of Army Regulation 635-200, paragraph 14-12C (2), for misconduct.  He had served 7 months and 9 days of total active service and was issued an RE Code of 3.

10.  There is no indication in the available records to show that the applicant has applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  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.

12.  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 through a local recruiting office.
 



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in accordance with applicable regulations with no indication of any violations of the applicant’s rights.
 
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’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service during such a short period of time.

4.  The applicant has failed to show through the evidence submitted or the evidence of record that he was issued the wrong RE Code at the time of his separation.  Although he is not precluded from applying for a waiver of his RE Code at a nearby recruiting office, there is no basis for the Board to change his RE Code at this time.
  
5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 October 2000; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
10 October 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

___x  __  _x ___  ___x___  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.




______x_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012021
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070301
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.100.0300
4/RE CODE
2.

3.

4.

5.

6.