RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2006
      DOCKET NUMBER:  AR20060013997


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla J. N. Troup             |     |Chairperson          |
|     |Mr. Robert Roger                  |     |Member               |
|     |Mr. John G. Heck                  |     |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 record be corrected by changing the
authority for his discharge and his reentry (RE) Code.

2.  The applicant states that he was separated due to a reduction in force
(RIF), but the wrong authority, Army Regulation 635-200, paragraph 16-8 was
cited.  He relates that he was not discharged for medical reasons.  He
indicates that when he tried to enlist in the Texas Army National Guard,
the recruiter discovered the errors in his discharge.

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and an extract from the current
version of Army Regulation 635-200 showing that paragraph 16-8 applies to
individuals who are separated while attached to medical holding detachments
or companies.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 May 1999, the date of the discharge.  The application
submitted in this case is dated 12 November 2005 and received for
processing on 1 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 entered active duty on 20 August 1985 and progressed
normally until he was promoted to staff sergeant, pay grade E-6, on 1
February 1995.

4.  In September 1996 he failed to achieve course standards at an M1/M1A1
Abrams Tank Master Gunner Course and in August 1997 a Memorandum of
Reprimand (MOR) was imposed for driving under the influence and it was
filed in the performance section of his Official Military Personnel File.

5.  On 10 August 1998 a Department of the Army (DA) Imposed Bar to
Reenlistment was initiated citing the above two derogatory items.

6.  The Department of the Army Suitability Evaluation Board declined to
transfer the MOR to his Restricted Fiche in January 1999.

7.  The applicant’s response to the DA Imposed Bar to Reenlistment is not
contained in the available records.   DA Orders 116-0155, dated 15 April
1999 directed that the applicant be transferred to the Army Transition
Center, Fort Knox, Kentucky for transition processing and authorized his
receipt of one-half separation pay.

8.  On 31 May 1999 the applicant was discharged under the provisions of
Army Regulation 635-200, paragraph 16-8.  Separation program designator
code “JCC” was assigned and he was issued an RE code of 4.

9.  Army Regulation 635-200 provides the basic authority for the separation
of enlisted personnel.  At that time, paragraph 16-8 of this regulation
sets forth the requirements for early separation of enlisted personnel due
to reduction in force, strength limitations, or budgetary constraints.  The
service of personnel separated under this paragraph will be characterized
as honorable.

10.  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.

11.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as persons with a HQDA bar to reenlistment.

12.  The SPD/RE Code Cross Reference Table, then in effect, provides
instructions for determining the RE code for Active Army Soldiers and
Reserve Component Soldiers separated for cause.  It also shows the SPD code
with a corresponding RE code and states that more than one RE code could
apply.  The Soldier’s file and other pertinent documents must be reviewed
in order to make a final determination.  The SPD code of "JCC" has a
corresponding RE code of "4."



13.  Army Regulation 635-200 provides the basic authority for the
separation of enlisted personnel.  Chapter 16 applies to changes in service
obligations,
including those associated with the Qualitative Management Program (QMP)
and RIF.  Currently, paragraph 16-7 applies to early separation due to
reduction in force, strength limitations, or budgetary constraints and
paragraph 16-8 covers the separation of Soldiers of medical holding
detachments/companies.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.

2.  The authority for separation was correct at the time of the applicant’s
discharge and the current paragraphs of the governing regulation are
irrelevant.
3.  There appears to be no basis for removal or waiver of those
disqualifications that established the basis for the reentry eligibility
codes.

4.  In view of the circumstances in this case, the assigned reentry
eligibility code was and still is appropriate.

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 this requirement.

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

__RR ___  __MJNT _  __JGH __  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.




                                  __     Marla J. N. Troup_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013997                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|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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