IN THE CASE OF:
BOARD DATE: 15 July 2008
DOCKET NUMBER: AR20080006921
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his Reenlistment Eligibility (RE) Code on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) be changed.
2. The applicant states, in effect, that the RE code he was given at the time of his discharge was done in retaliation for his alleged conduct (sic). He now wishes to enlist in the California Army National Guard (CAARNG) and serve his country again.
3. The applicant provides a copy of his NGB Form 22 and a self-authored statement.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The evidence of record shows that the applicant previously served in the Regular Army from 3 August 1994 through 15 November 1996. He was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14-12B for misconduct. He received a general discharge (GD), under honorable conditions and he was assigned an RE code of RE-4. The specific facts and circumstances of his discharge were not contained in the official record.
3. On 3 September 1999, he enlisted in the Ohio (OH) ARNG for a period of
6 years. A review of his enlistment contract shows that he requested a waiver of his RE-4 from his previous Regular Army enlistment. A waiver was granted.
4. On 8 May 2002, the applicant was discharged from the OHARNG and as a Reserve of the Army under the provisions of National Guard Regulation 600-200, paragraph 8-26c, by reason of entry level status. His service was uncharacterized and he was assigned an RE code of RE-4. Again, the specific facts and circumstances leading to his discharge were not available for review.
5. National Guard Regulation (NGR) 600-200 governs procedures covering enlisted personnel management of the ARNG. Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the Reserve of the Army, the State ARNG only, or both. Paragraph 8-26(c) of that regulation provides in pertinent part, that individuals may be discharged for entry level status and conduct. An RE code of RE-3 is usually authorized.
6. Army Regulation 135-178 (Separation of Enlisted Personnel), in effect at the time of the applicant's discharge, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the ARNG and the U.S. Army Reserve (USAR). Chapter 5, in pertinent part, prescribed criteria and procedures for the separation of enlisted Soldiers because of unsatisfactory performance or conduct (or both) while in entry level status.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his RE code was assigned in retaliation of some alleged conduct. He now wants to serve his country again.
2. The evidence of record shows that the applicant had 2 previous opportunities to serve his country. His first enlistment in the Regular Army ended when he was separated for misconduct. The specific details of his misconduct were not available for review.
3. The applicant was afforded a second opportunity to serve when he received a waiver of his prior RE-4 from the Regular Army, which normally is a permanent disqualifier to reenlistment. However, the OHARNG waived his RE code of RE-4 and allowed him to enlist. He was again discharged under unknown circumstances, although he alleges that it was in retaliation of some alleged conduct. It is noted that an RE code of RE-3 is normally authorized for his type of discharge. However, in the absence of the specific facts and circumstances of his discharge, administrative regularity is presumed in the applicant's discharge. The applicant has provided insufficient evidence to overcome this presumption.
4. If the applicant still desires to reenlist, the responsibility for processing waivers of RE codes rest with the recruiters. The applicant should be aware of this process since he was already granted a previous waiver by the OHARNG. As such, the applicant should contact a U.S. Army recruiter to determine whether he requires a waiver to reenlist.
5. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement.
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
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080006921
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ABCMR Record of Proceedings (cont) AR20080006921
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