RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080001264 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 Reenlistment (RE) Code be changed from
RE-3B to RE-1 and that his award of the Expert Marksmanship Qualification Badge for the 106mm Recoilless Rifle be added to his records. 

2.  The applicant states, in effect, that he received an RE-3B code because of a mistaken arrest by civil authorities which cause him to be absent without leave (AWOL) for 5 days; however, he was never in any more trouble and he received the Good Conduct Medal (AGCM) and therefore did not deserve to be awarded an RE Code of RE-3B.  He continues by stating that he also qualified expert with the 106mm Recoilless Rifle at Fort Hood, Texas and desires that award to be entered on his records along with an RE Code of RE-1.    

3.  The applicant provides excerpts from his service record (DA Form 24), a copy of an order from this Board awarding him the AGCM, and a letter of appreciation. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted with a moral waiver in Oakland, California on 14 November 1961 for a period of 3 years.  He was transferred to Fort Ord, California to undergo his training. 

3.  On 9 February 1962, he was apprehended by civil authorities in San Pablo, California for contributing to the delinquency of a minor.  On 14 February 1962, he appeared before the San Pablo Municipal Court and received a 30-day suspended sentence and 1 year probation.  He was returned to his unit after having been AWOL for 5 days.  His conduct and efficiency ratings were listed as “Unsatisfactory.”    

4.  He completed his training and was transferred to Korea on 29 May 1962.  He served in Korea until 18 June 1963, when he was transferred to Fort Hood, Texas in August 1963.    

5.  On 20 February 1964, nonjudicial punishment was imposed against him for assaulting another Soldier.  His punishment consisted of a forfeiture of pay and extra duty.  

6.  On 11 June 1964, the applicant submitted a request for a compassionate reassignment to the San Francisco Bay area because he was scheduled for trial by jury on a battery charge in Contra Costa County, California on 30 July 1964.  He also indicated that his presence would also be required as a witness in a felony matter in the near future when the defendants were apprehended.     

7.  On 5 October 1964, General Orders Number 24, paragraph 1, issued by Headquarters, 2nd Battalion, 41st Infantry Regiment awarded the applicant the AGCM.  However, on 10 November 1964, General Orders Number 26, issued by the same headquarters, revoked the applicant’s award of the AGCM.

8.  On 18 November 1964, the applicant was honorably released from active duty (REFRAD) due to the expiration of his term of service (ETS).  He had served 3 years of total active service and had 5 days of lost time due to AWOL.  His DD Form 214 issued at the time of his REFRAD shows that he was awarded the Marksman Marksmanship Badge with rifle bar and a Letter of Appreciation.  He was issued a RE Code of “RE-3B.”

9.  A review of the applicant’s record fails to show any indication that he ever qualified with or was awarded the qualification for a 106mm Recoilless Rifle.  However, his records do indicate that the applicant was not eligible for reenlistment based on his being AWOL.

10.  On 16 October 2006, the applicant applied to this Board requesting that he be awarded the Republic of Korea Presidential Unit Citation (ROK-PUC), the Korea Defense Service Medal (KDSM), and the AGCM.  On 19 April 2007, the Board awarded the applicant the ROK-PUC, the AGCM, the KDSM, and the National Defense Service Medal (NDSM).

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 4 of the regulation in effect at the time prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

12.  RE-3B applied to persons not qualified for continued Army service due to having lost time during their last period of service, but the disqualification was waivable.  A waiting period of 2 years from separation was required before a waiver could be submitted through a local recruiting office.
   
DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  Notwithstanding the action by the Board to award the applicant the AGCM, the applicant was properly issued an RE Code of RE-3B based on his having lost time during his last period of service in accordance with the regulation in effect at the time.  The issuance of his RE Code RE-3B was specifically linked to his having lost time and he could have applied for waiver of the lost time in order to enlist had he chose to do so.  However, there is no basis to change his properly issued RE Code based on the reasons he has cited.   

3.  The applicant has also failed to show through the evidence submitted with his application and the evidence of record that he qualified with the 106mm Recoilless Rifle.  Accordingly, there is no basis to add that award to his records.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX  __  __XXX__  __XXX__  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

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.




      _____XXX_____
                 CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001264



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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