RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 26 June 2007 
	DOCKET NUMBER:  AR20060017659 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

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, in effect, that the Reentry Eligibility (RE) Code recorded on his discharge document be changed.

2.  The applicant states, in effect, that he was young and did not realize the damage that such an entry on his discharge document would cause him.  The applicant also states, in effect, that he would like to enlist, serve in Iraq, and complete 20 years of active military service.

3.  The applicant provides a Western Aviation Service Corp, Ramey Branch-Aguadilla, Puerto Rico, letter, dated 27 November 2006; Caribbean Transportation Services, letter, dated 2 February 2004; and FedEx Trade Networks, Memphis, Tennessee, Inter-Office Memorandum, dated 24 November 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 29 May 1987, the date of his discharge from the Army.  The application submitted in this case is dated 25 November 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.  On 11 January 1971, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 35K (Avionics Mechanic).  On 3 August 1972, the applicant was discharged for the good of the service under conditions other than honorable.

4.  On 22 November 1972, the applicant enlisted in the RA for a period of
2 years.  On 29 January 1973, action was initiated for possible separation of the applicant from the Army for fraudulent entry due concealment of his prior service in the U.S. Army.  However, discharge action based on fraudulent entry was waived and retention of the applicant in the Army was authorized on 7 February 1973.  On 21 August 1974, the applicant was honorably released from active duty to serve 1 year in a Reserve Component unit.  At the time, the applicant had completed 1 year and 9 months net active service; 3 years, 3 months, and
23 days total active service; and was assigned an RE Code of RE-3.

5.  On 11 October 1974, the applicant submitted a DA Form 3072-1 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for Personnel Applying from Civilian Life).  As a result of the request, in pertinent part, it was determined that the applicant’s RE Code was in error and the
RE Code was corrected to RE-1 on 5 February 1975.

6.  On 19 February 1975, the applicant enlisted in the RA for a period of 3 years. He continued to serve on active duty in MOS 35K and records show that the highest grade he attained was staff sergeant/pay grade E-6.

7.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 26 September 1978.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for, on or about 28 August 1978, violation of a lawful general regulation by having in his possession green blotter cloth containing 16 1/2 circular spots of LSD (lysergic acid diethylamide) and for, on or about 28 August 1978, wrongfully having in his possession an undetermined amount of marihuana/hashish residue.  The punishment imposed was reduction to specialist four/pay grade E-4.

8.  The applicant's military service records contain a copy of a DA Form 2627, dated 28 February 1984.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
20 January 1984, without authority, failing to go at the time prescribed to his appointed place of duty; for on or about 20 January 1984, wrongfully appearing at an installation under military control with an unshaven face; and for on or about 10 February 1984, without authority, failing to go at the time prescribed to his appointed place of duty.  The punishment imposed was forfeiture of $634.00 for 1 month (suspended for 120 days) and extra duty for 15 days (not to exceed
2 hours per day) supervising extra duty personnel or as the battalion command sergeant major may direct.

9.  The applicant's military service records contain a copy of a DA Form 2627, dated 19 June 1984.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about
13 June 1984, without authority, failing to go at the time prescribed to his appointed place of duty.  The punishment imposed was 25 days restriction at home, 10 days extra duty, and a written reprimand.  This document also shows that the suspension of the punishment of forfeiture of $634.00 for 1 month imposed on 28 February 1984 was vacated and the unexecuted portion of the punishment was ordered duly executed. 

10.  The applicant's military service records contain a copy of a DA Form 2627, dated 3 October 1985.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for, on or about
3 September 1985, without authority, failing to go at the time prescribed to his appointed place of duty.  The punishment imposed was reduction to the rank of sergeant/pay grade E-5, forfeiture of $200.00 per month for 2 months (1 month suspended until 23 March 1985), 45 days restriction, and 45 days extra duty.

11.  The applicant's military service records are absent documentation related to his administrative separation action.  However, the applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 29 May 1987.  This document shows, in pertinent part, that the separation authority was Army Regulation 635-200, Chapter 9, and the reason for his discharge was alcohol and drug abuse rehabilitation failure.  Based on the authority and reason for his separation, the applicant was issued a general discharge under honorable conditions and assigned an RE Code of
RE-3.  At the time of his discharge the applicant had completed a total of
15 years, 7 months, and 2 days active service.

12.  There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  The applicant’s military service records contain a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, section 1552), dated 1 April 1997.  This document shows that the applicant requested a change to his Social Security Number.  On 24 September 1998, the ABCMR returned the application without action advising the applicant additional verifying documentary evidence was required.  The applicant did not resubmit the application.

14.  In support of his application, the applicant provides a letter from the President, Western Aviation Service Corporation, who attests to the applicant’s exceptional personal and professional characteristics.  He also provides a letter from Mr. Dave I____, Caribbean Transportation Services, which shows that the applicant was presented the company’s “First in Class” award for his exemplary performance during the holiday season.  The applicant also provides a letter from Mr. Ed C____, President and Chief Executive Officer, FedEx Trade Networks, which shows the applicant was selected as a FedEx Trade Networks Five Star Award winner for his significant contribution to the company. 

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides, in pertinent part, 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.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

16.  Army Regulation 601-210 further provides, in pertinent part, that RE codes are used for administrative purposes only, and that applicants should be advised that RE codes are not to be considered derogatory in nature, they simply are codes used for identification of an enlistment processing procedure.  This document also provides procedures for the verification of an applicant's prior service.  (Applicants who are former members of the Armed Forces are categorized as prior service personnel.  The applicant's military records show that he qualifies as prior service.)

17.  Army Regulation 601-210 also prescribes eligibility criteria governing the enlistment of persons, with or without prior service (PS), into the RA and the USAR.  Paragraph 3-20 (Verification of prior service) provides, in pertinent part, that applicants who are thought to have had, or who claim to have had PS in any U.S. Armed Force will not be enlisted in the RA or USAR until their PS, if any, is verified.  Authorized personnel with access to the Defense Management Data Center via the Recruiter Eligibility Data Display may obtain reentry eligibility data.

18.  Army Regulation 601-210 also provides that applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request to the approval authority. Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Unless indicated otherwise in the regulation, requests for waiver and other actions that require approval by the Commanding General, U.S. Army Human Resources Command (USA HRC), Alexandria, Virginia (for the RA); Commander, USA HRC, St. Louis, Missouri (for the USAR); or Commanding General, U.S. Army Recruiting Command (USAREC), will be forwarded by the recruiter to the appropriate email address.  Every effort will be made to ensure capture of the electronic record of waiver starting at the recruiting station level.

19.  The governing Army regulation further provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct
RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  No requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.  This document provides, "Request for a waiver action will automatically trigger an RE code review.  Otherwise, when it appears that the
RE code is incorrect, an applicant may request correction by sending a written explanation, DD Form 214, and evidence to support the claim to Commander, U.S. Army Human Resources Command, Enlisted Personnel Management Division, 2461 Eisenhower Avenue, Alexandria, Virginia  22331-0451."

20.  There is no evidence in the applicant's record which shows that he applied for a waiver of his RE Code to enter the U.S. Army and/or that his request was denied.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the RE Code (i.e., RE-3) he received in conjunction with his discharge from the RA and the supporting evidence he provided were carefully considered.  However, the applicant provides insufficient documentary evidence to support his claim.

2.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Therefore, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.
3.  The evidence of record shows the RE Code (i.e., RE-3) that the applicant received was appropriately assigned based on the authority and reason for his separation.  Therefore, the applicant is not entitled to correction of his records.

4.  The evidence of record indicates that one reason the applicant may be requesting a change to his RE Code is in order to reenter the U.S. Army.  In this regard, if this is so, the evidence of record shows that individuals, including prior service personnel, who desire to enlist in the U.S. Armed Forces should contact a local recruiter to determine their eligibility and/or request assistance in processing a request for waiver through appropriate administrative channels.

5.  Accordingly, the applicant is advised that, although no change is being recommended to his RE Code, this does not mean that he is disqualified from enlistment in the U.S. Army, as the RE-3 code he was assigned is waivable.  If the applicant desires to enlist in the U.S. Army or another branch of service, he should contact a local recruiter to determine his eligibility and/or request assistance in processing a waiver through appropriate administrative channels to enter the U.S. Armed Forces.  Those individuals can best advise a prior service member as to the needs of the Service and are required to process waivers of RE codes.

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 May 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
28 May 1990.  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

___JEA___  ___JLP_  ___JBM__  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.




___James E. Anderholm____
          CHAIRPERSON




INDEX

CASE ID
AR20060017659
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/06/26
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19870529
DISCHARGE AUTHORITY
AR 635-200, Chapter 9 
DISCHARGE REASON
Alcohol and Drug Abuse Rehabilitation Failure
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.0300.0000
2.

3.

4.

5.

6.