IN THE CASE OF:
BOARD DATE: 15 January 2009
DOCKET NUMBER: AR20080016642
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 Reentry (RE) code be corrected from RE-4 to RE-3.
2. The applicant states that Army Regulation 635-200, paragraph 14-2 states that Soldiers discharged for misconduct will be assigned an RE-3 code.
3. The applicant provides a copy of his separation document (DD Form 214) and an excerpt of Army Regulation 635-200 dated 15 April 1985, paragraph 14-2, which states that Soldiers discharged for misconduct will be assigned an RE-3 code.
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 applicant's military records show that he enlisted in the Regular Army on 31 January 1973 and was awarded the military occupational specialty (MOS) of 76Y (Armorer/Unit Supply Specialist).
3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on 11 December 1973 for disobeying a lawful order and on 4 September 1974 for failing to go at the time prescribed to his appointed place of duty.
4. On 29 March 1974, the applicant was convicted by a civilian court for felony theft. He was sentenced to 3-years confinement, suspended for 3 years; 3 years of probation; $57.00 for court costs; a $700.00 fine, $275.00 for restitution, and $360.00 for probation costs.
5. As a result of that conviction, along with the applicant's record of NJP and his lack of discipline, his lack of respect for people around him and the Army, his apathetic and antagonistic attitude, and his unsatisfactory duty performance, the applicant's commander initiated action to separate him due to misconduct.
6. The applicant waived his rights in conjunction with his commander's recommendation to separate him, and the appropriate authority approved his discharge and directed that he be furnished a General Discharge Certificate.
7. Accordingly, on 24 October 1974, the applicant was discharged for misconduct under the provisions of Army Regulation 635-206 and issued a General Discharge Certificate.
8. The DD Form 214 issued to the applicant shows that he was assigned an
RE-4 code.
9. On 19 July 1985, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.
10. On 18 March 1992, this Board denied the applicant's request to upgrade his discharge.
11. The RE code RE-3 is assigned to individuals who are not qualified for continued Army service, but the disqualification is waiverable. These individuals are ineligible for enlistment unless a waiver is granted. The RE code RE-4 is assigned to individuals separated from last period of service with a nonwaiverable disqualification under the provisions of Army Regulation 601-280 (Army Retention Program).
12. Army Regulation 601-280 dated 1 May 1968, in effect at the time, Table 2-2, specifies that individuals who are on parole, probation, or suspended sentence from a civil court are to be assigned an RE-4 code.
DISCUSSION AND CONCLUSIONS:
1. Since the applicant was sentenced to 3 years of probation, he was properly assigned an RE-4 in accordance with Army Regulation 601-280, Table 2-2, in effect at the time.
2. The excerpt from Army Regulation 635-200 provided by the applicant is from a regulation dated 15 April 1985, which is over 10 years after his discharge.
3. In view of the foregoing, there is no basis to grant the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X___ 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.
__________X____________
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) AR20080016642
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