DOCKET NUMBER: AR20090001886
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 eligibility (RE) code be changed.
2. The applicant states, in effect, that his first lieutenant had him sign paperwork discharging him for minor infractions without explaining what the RE code meant because of racial prejudice and the uneducated young blacks during that time period.
3. The applicant provides a copy of DD Form 214 (Report of Separation from Active Duty) in support of this application.
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 applicants military records are not available for review. However, the available evidence was sufficient to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army on 23 March 1973.
4. The specific facts and circumstances surrounding the applicants discharge processing are not available for review. The evidence does include a properly constituted DD Form 214 authenticated by the applicant that contains the authority and reason for the applicants active duty discharge (separation program designator code 46A, unsuitability) on 4 March 1974, in pay grade E-1 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, with a general discharge characterized as under honorable conditions and an RE code of RE-3. The DD Form 214 he was issued confirms he completed a total of 11 months and 12 days of creditable active military. This is attested to by his signature.
5. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
6. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, apathy, defective attitude, or an inability to expend effort constructively and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commanders judgment, the member is unfit or unsuitable for further service. A general discharge was generally considered appropriate.
7. Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) in effect, at that time covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 4, in pertinent part, stated that Soldiers who were discharged for unsuitability, unfitness, conviction by a civilian court-martial, sentence by a court-martial, resignation for the good of the service, misconduct, fraudulent enlistment, and bar to reenlistment require a waiver to be eligible for reenlistment.
8. Army Regulation 601-210, chapter 3, prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes including RA RE codes. RE-3, at the time, applied to persons not qualified for continued Army service, but the disqualification was waivable.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his RE code should be changed was carefully considered.
2. Although the applicants record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and the characterization of the applicants discharge and it is authenticated by his signature in item 29 (Signature of Person Being Transferred or Discharged).
3. The applicant was properly discharged for unsuitability. Unsuitability is a waivable disqualification for enlistment and an RE-3 is to be assigned for a waivable disqualification. As such, the applicant was properly assigned an RE-3 code.
4. In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit sufficient evidence that would satisfy this requirement.
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) AR20090001886
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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