IN THE CASE OF:
BOARD DATE: 4 May 2010
DOCKET NUMBER: AR20090018474
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 change of his reentry eligibility (RE) code and deletion of the time lost entries concerning him being absent without leave (AWOL) from his DD Form 214 (Report of Separation from Active Duty).
2. The applicant states when he missed his flight he went to Fort Benjamin Harrison, IN and reported to the military police. They contacted his unit. He adds that it is an injustice that his RE code is preventing him from maybe joining the National Guard or the Regular Army (RA).
3. The applicant does not provide any additional documents.
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 show that he enlisted in the RA on
15 November 1976 and was awarded military occupational specialty 13B (cannon crewmember).
3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being AWOL from 20 August to
3 September 1977, disobeying a lawful order from a commissioned officer on
9 September 1977, absenting himself from his place of duty on 14 September 1977, and failing to go at the time prescribed to his appointed place of duty on
25 and 26 April 1978.
4. On 4 August 1978, the applicants commander notified him of his intent to recommend his discharge under the Expeditious Discharge Program (EDP) due to his:
* inability to emotionally adjust to military life
* frequent childish behavior
* inability to perform under any pressure whatsoever
* immaturity
* disrespect for authority
5. The applicant consented to be discharged under the EDP.
6. The commanders recommendation was approved by the appropriate authority. Accordingly, on 5 September 1978 the applicant was honorably discharged. The DD Form 214 he was issued shows that he was assigned an RE-3B and he had 12 days time lost from 21 August through 1 September 1977.
7. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, stated that RE-3B was assigned to individuals who had time lost during their last period of service. Soldiers assigned an RE-3B are ineligible for enlistment unless a waiver is granted.
8. Army Regulation 635-5 (Separation Documents), in effect at the time, stated that time lost was to be entered in Item 27 (Remarks) of a DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant accepted NJP for being AWOL from 21 August through 1 September 1977. Therefore, it must be presumed that the applicants explanation of his absence was not accepted by his commander.
2. It would be inappropriate to second-guess the chain of commands judgment at this late date. The applicants commander had current information and could talk to the applicant in person concerning his absence. If the applicant had missed a flight and had immediately gone to a military installation to report his status he should have presented those mitigating factors when he was offered NJP; not 32 years later.
3. Since the applicant had time lost, it was properly recorded on his DD Form 214 and he was properly assigned an RE-3B.
4. While it is commendable that the applicant considers reentering military service, the assignment of an RE-3B is not an injustice given his time lost.
5. The 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 reenter military service, 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 are responsible for processing RE code waivers.
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) AR20090018474
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ABCMR Record of Proceedings (cont) AR20090018474
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