IN THE CASE OF:	  

		BOARD DATE:	       12 November 2008

		DOCKET NUMBER:  AR20080012183 


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 records be corrected by upgrading his reentry eligibility (RE) code from RE-3 to RE-1 or RE-1A so he may join the Army National Guard or Army Reserve.

2.  The applicant states that he was not told he could submit a request for a waiver to the bar to reenlistment after his discharge.  He also adds that he was a professional Soldier during his military service and believes he was treated unfairly.  He now realizes that he can submit a request for a waiver, but that takes too much time.  He asks the Board to review the supporting documentation and adjust his RE code.

3.  The applicant provides the following additional documentary evidence in support of his application:  

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 28 September 1984.

	b.  Memorandum, dated 11 June 1984, from the applicant to the Commander, Installation Support Activity, Fort Monmouth, New Jersey, subject:  Appeal of Findings and Punishment Imposed Under Article 15.

	c.  Two unsigned memoranda, dated 5 October 1984 and 4 February 1985, from a legal assistance officer, Fort Monmouth, to the Commander, U.S. Army Electronics and Research Development Command, Adelphi, Maryland, subject:  Bar to Reenlistment Appeal.

	d.  Certificate of promotion, dated 1 August 1983.

	e.  Certificate of Commander’s Award for Public Service, dated 29 May 1992.

	f.  Undated character reference letter.

	g.  DA Form 2166-6 (Enlisted Evaluation Report) for the periods May 1983 to December 1983; May 1982 to April 1983; and May 1981 to April 1982.

	h.  Miscellaneous letters of appreciation and commendation, dated on various dates in 1979, 1980, 1981, and 1982.

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’s records are not available for review with this case.  However, there are sufficient documents available in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 shows he had prior active service and entered the Regular Army on 1 September 1978.  He was trained in military occupational specialty 67N (Utility Helicopter Repairman).  He was promoted to sergeant (SGT)/E-5 on 13 April 1976 and staff sergeant/E-6 on 1 August 1983.

4.  The applicant’s DD Form 214 also shows he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Overseas Service Ribbon (2d award), the Army Good Conduct Medal (4th award), the Senior Aircraft Crewman Badge, the Expert Marksmanship Qualification Badges with Rifle, Grenade, and Machinegun Bars, and the Marksman Marksmanship Qualification Badge with Pistol Bar.  His reconstructed record does not show any significant achievements during this period of military service.
5.  The applicant’s reconstructed records show that on 4 June 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  A copy of the Article 15 is not available for review with this case.  However, it appears that he was punished for twice violating Article 86 of the UCMJ (failure to go at the prescribed time to his appointed place of duty) and that his punishment consisted of reduction to SGT/E-5 (suspended for 60 days), forfeiture of one half-month of pay for two months (suspended for 60 days), and 60 days of restriction.

6.  On 11 June 1984, the applicant appealed the findings and punishment under Article 15.  However, it is unclear if his appeal was approved or denied by the next superior authority.

7.  The applicant’s reconstructed records show that on an unknown date, the suspension of his punishment of reduction to SGT/E-5 (suspended for 60 days) and forfeiture of one half-month of pay for 2 months (suspended for 60 days) was vacated.

8.  The facts and circumstances surrounding the applicant’s bar to reenlistment are not available for review with this case.

9.  The applicant was honorably discharged on 28 September 1984 for expiration of his term of service.  Item 26 (Separation Code) of his DD Form 214 shows the entry "JBK" and Item 27 (Reentry Code) shows the entry "RE-3."

10.  It appears that after his discharge, the applicant requested assistance from a legal assistance officer at Fort Monmouth to appeal his bar to reenlistment.  In a memorandum, dated 5 October 1984, and addressed to the Commander, U.S. Army Electronics and Research Development Command, the legal assistance officer argues that the applicant’s bar to reenlistment mentioned an old incident, dating back to February 1980, in addition to his 29 May 1984 incident that led to the Article 15.  The legal assistance officer argues that the applicant’s punishment under the Article 15 was harsh.

11.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 4 of this regulation states, in pertinent part, that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation.   Furthermore, a Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in an entry-level status and service is uncharacterized.

12.  Army Regulation 635-200 states, 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.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Interim change 12 of this regulation (applicable at the time of the applicant's discharge) prescribed basic eligibility for prior-service applicants for enlistment.  Table A-2 included a list of the Regular Army reenlistment eligibility codes.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  RE-3 applied to those individuals who were not qualified for reenlistment, but their disqualification was waivable.

DISCUSSION AND CONCLUSIONS:

1.  The facts and circumstance surrounding the applicant’s Article 15 and/or subsequent bar to reenlistment are not available for review with this case.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected.

2.  The applicant's DD Form 214 shows that he was honorably discharged under the provisions of Army Regulation 635-200, chapter 4, for expiration term of service.  He could not have reenlisted without a waiver because he received a bar to reenlistment.  The appropriate RE code associated with this type of discharge is RE-3.

3.  The legal assistance officer's memorandum, dated 5 October 1984, addressed to the Commander, U.S. Army Electronics and Research Development Command, is noted.  However, in the absence of the Bar to Reenlistment Certificate, there is insufficient evidence to confirm or refute the arguments raised by the legal officer.

4.  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 evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant’s RE code.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20080012183



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ABCMR Record of Proceedings (cont)                                         AR20080012183



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