IN THE CASE OF: BOARD DATE: 19 November 2009 DOCKET NUMBER: AR20090009250 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, in effect, that: a. his general discharge be upgraded to a fully honorable discharge; b. his separation program designator (SPD) code be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty); c. his reentry eligibility (RE) code of "3" be changed to a "2" or "1"; d. the remark "apathy" be removed from his narrative reason for separation; e. item 12a (Date Entered [Active Duty] This Period) of his DD Form 214 be changed from 1 July 1980 to 26 February 1980, and that his Reserve dates of service from 27 May 1982 to 30 June 1996 [sic] count toward his total time in the Army [applicant incorrectly referred to the year 1996 instead of 1986, as his Reserve obligation termination date was 30 June 1986]; f. his DD Form 214 be corrected to show any and all awards and decorations relevant to his assignments in Iraq, Egypt, Panama, and Puerto Rico to which he is entitled; and g. he be promoted to the rank of sergeant (SGT), as was promised by two noncommissioned officers (NCOs). 2. The applicant states that he started his military career at the age of 18 with a group of his high school friends because they were poor and wanted to help the hostages held at the U.S. Embassy in Iran. He also states that he earned a 100-percent score on the Performance-Oriented Infantry Qualification Test and graduated at the top of his class at boot camp. He then claims he was assigned to a bivouac site in Iraq near the Iranian border to assist in operations to free the hostages in Tehran, Iran [known as Operation Eagle Claw or Operation Evening Light]. He then contends he was asked by his platoon sergeant to assist in training Egyptian Soldiers and spent the next several months training Egyptian Soldiers. After returning to Fort Campbell, Kentucky, he deployed to Panama under the Torrijos-Carter Treaty and that during that time he did not rise in rank or get the schooling he was promised, but he also was not causing trouble. Additionally, he claims that after he returned to the United States, an NCO asked him if he wanted to do a tour in Beirut, Lebanon, and that this NCO promised him that he would be promoted to SGT and would be able to become a recruiter if he accepted the tour. He indicates that when he told this NCO he was thinking about leaving the Army, the NCO got very angry and punched a wall behind him. After this talk he was written up for being late to formation and being disrespectful to officers. 3. Further, the applicant states that everything came to a head one night at his barracks when three Soldiers attempted to "motivate" him by beating him up. He states that he was in the hospital for 2 weeks. Consequently, he claims that those Soldiers received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ). He also contends that he decided to leave the Army and was discharged a year before his contract was up. He also contends that the relief he is requesting would not only serve justice, but also help him in his employment situation, as he is unable to obtain any position within the Federal Government due to what is contained on his DD Form 214. 4. The applicant provides a multitude of evidence which has been indexed in a separate two-page document 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 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 military records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 29 April 1980 and enlisted in the Regular Army on 1 July 1980. He completed initial entry training at Fort Benning, Georgia, and was awarded military occupational specialty 11B (Infantryman). He was then reassigned to Fort Campbell, Kentucky, in October 1980 for his initial permanent duty assignment with Company C, 1st Battalion, 502nd Infantry Regiment. 3. The applicant was promoted from private/E-1 to private/E-2 on 1 January 1981. 4. On 30 March 1981, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a suspended reduction from private/E-2 to private/E-1 and forfeiture of $75.00 (both of which appear to have been remitted without action), extra duty for 14 days, and restriction for 14 days. 5. Between 17 December 1981 and 25 March 1982, the applicant was formally counseled in writing on at least 14 occasions for his performance, failing to report on two occasions, disobeying a lawful order on six occasions, weapons neglect, not paying attention to details, disrespect, his personal gear and billets maintenance, his morale and duty performance, and his negative attitude. One counseling, dated 28 February 1982, specifically stated that the applicant conducted himself in a very poor manner during the time he was in Panama and that he went on sick call every day or night during the first week he was in Panama. 6. On 2 February 1982, a mental status evaluation was conducted on the applicant and he was cleared for any administrative action deemed appropriate by his command. 7. On or about 3 February 1982, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty and wrongfully appearing at Fort Campbell, Kentucky, in an improper uniform. His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, forfeiture of $128.00 pay per month for 1 month, and 14 days of extra duty. The applicant appealed this punishment, but on 4 February 1982 his appeal was denied. 8. On 22 March 1982, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior NCO. His punishment consisted of forfeiture of $128.00 pay per month for 1 month and correctional custody for 7 days. 9. On 8 April 1982, the applicant's commanding officer informed him that it was his intention to recommend his elimination from military service under the provisions of chapter 13 (Separation for Unfitness or Unsuitability), Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), for unsuitability. He based this recommendation on the applicant repeatedly demonstrating his inability to adapt to the demands of military life as evidenced by his continued failure to follow orders and his overall poor duty performance. He advised the applicant of his rights. 10. On 12 April 1982, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of chapter 13 of Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case before a board of officers and elected not to submit statements in his own behalf. He also waived counsel. He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. 11. On 17 May 1982, the proper separation authority approved the applicant's separation under the under the provisions of chapter 13, Army Regulation 635-200, for unsuitability and directed that he be issued a General Discharge Certificate. He also directed that the applicant be transferred to the USAR Control Group (Individual Ready Reserve) to complete his military service obligation. On 27 May 1982, the applicant was discharged accordingly. Item 26 (Separation Code) of his DD Form 214 shows that he was assigned an SPD code of "LMJ." Item 27 (Reenlistment Code) of this same document shows that he was assigned an RE code of "3." Item 14 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of this document shows that he was awarded the Army Service Ribbon. Item 12i (Reserve Obligation Termination Date) of this document shows that his military service obligation expired on 30 June 1986. 12. 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. 13. The applicant provided medical evidence which shows that he was treated by medical personnel on 11 January 1981 for a left eye laceration which required three sutures to close that occurred when he hit the corner of his left eye against a headboard in his barracks. He also provided medical evidence which shows that he was again treated by medical personnel on 7 December 1981 after being punched twice in the left eye on that date which also required sutures. The applicant essentially stated that everything came to a head one night at the barracks when three Soldiers attempted to "motivate" him by beating him up. His military records contained a counseling statement, dated 17 December 1981, in which he was counseled regarding his involvement in a recent fight in which two Soldiers in his company struck and threatened him. The officer who counseled the applicant informed the applicant that he punished the two other Soldiers under the UCMJ, but that he had evidence that the applicant had instigated the altercation through his actions and words. He also informed the applicant that he was aware of possibly two other incidents in which the applicant provoked other Soldiers into wanting to fight him, and cautioned him to halt such provocative actions in the future. 14. Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation set forth the basic authority for the separation of enlisted personnel for unsuitability. It provided that members were subject to separation for unsuitability for inaptitude, personality disorder, and apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively). A general under honorable conditions characterization of service was normally appropriate. 15. Army Regulation 635-200, paragraph 3-7a, provides, in pertinent part, that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 16. Army Regulation 635-200, paragraph 3-7b, provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 17. 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. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes. RE codes 1 and 2 permit immediate reenlistment if all other criteria are met. An RE code of 3 applies to persons not qualified for continued Army service, but the disqualification is waivable. An RE code of 4 indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment. This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 18. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Additionally, the SPD/RE Code Cross Reference Table maintained by the U.S. Army Human Resources Command establishes RE Codes to be assigned for each SPD. 19. Interim Change 1 of Army Regulation 635-5-1, dated 25 May 1981, provides that an SPD code of "LMJ" applies to persons who are discharged for under the provisions of chapter 13, Army Regulation 635-200, for unsuitability due to apathy and/or a defective attitude or inability to expend effort constructively. An RE code of "3" applies to persons separated from their last period of service that were not considered fully qualified for reentry or continuous service at the time of their separation. They are ineligible to reenlist unless a waiver is granted. This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 20. Army Regulation 635-5 (Separation Documents) provides guidance on the preparation of the DD Form 214. This regulation states that the narrative reason for separation is based on regulatory or other authority. This regulation also provided, in pertinent part, that for item 12a, the beginning date of the continuous period of active duty for issuance of the DD Form 214 for which a DD Form 214 was not previously issued would be entered. 21. Operation Eagle Claw, the only United States military operation to attempt to rescue the 52 American hostages taken in early November 1979 and held in Tehran, Iran, was conducted on 24 April 1980. DISCUSSION AND CONCLUSIONS: 1. The applicant requests that: a. his general discharge should be upgraded to an honorable discharge; b. his SPD code should be removed from his DD Form 214; c. his RE code of "3" should be changed to a "2" or "1"; d. the remark "apathy" should be removed from his narrative reason for separation; e. item 12a of his DD Form 214 should be changed from 1 July 1980 to 26 February 1980 and that his Reserve dates of service from 27 May 1982 to 30 June 1986 should count toward his total time in the Army; f. his DD Form 214 should be corrected to show any and all awards and decorations relevant to his assignments in Iraq, Egypt, Panama, and Puerto Rico to which he is entitled; and g. he should be promoted to the rank of SGT, as was promised by two NCOs. 2. The applicant's claim that he was assigned to a bivouac site in Iraq near the Iranian border to assist in operations to free the hostages in Tehran, Iran, was noted. However, as Operation Eagle Claw was conducted on 24 April 1980 and the applicant did not enter active duty until 1 July 1980, his claim is clearly without merit. 3. The applicant's contention that three Soldiers attempted to "motivate" him by beating him up was also noted. However, evidence in his military records shows that while he was involved in a fight in which two Soldiers in his company struck and threatened him, the officer who counseled the applicant stated that he had evidence that the applicant had instigated the altercation through his actions and words and was aware of possibly two other incidents in which the applicant provoked other Soldiers into wanting to fight him. 4. The applicant's claim to have been hospitalized for 2 weeks after he was in a fight was considered. However, there is no evidence in his military records and the applicant failed to provide evidence to corroborate this claim. 5. The applicant's contention that he decided to leave the Army 1 year before his contract was up was also noted. However, the applicant did not choose to be discharged; rather, his command initiated and approved his discharge for unsuitability. 6. The fact that the applicant is essentially requesting that his discharge be upgraded so that he can potentially receive better employment opportunities was noted. However, the ABCMR does not grant requests for upgrade of discharges simply for the purpose of improving a person's employment prospects. 7. The evidence of record clearly shows that the applicant was repeatedly counseled for multiple deficiencies and that he accepted NJP under Article 15 of the UCMJ on three occasions for various offenses. Given these instances of misconduct and inappropriate behavior, the applicant failed to provide evidence which proves that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. Absent such evidence, regularity must be presumed in this case. 8. The applicant's record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. 9. The applicant's SPD and RE codes are based on his reason for discharge and cannot be changed unless his narrative reason for discharge is changed. His narrative reason for discharge was based on his discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability due to apathy and/or a defective attitude or inability to expend effort constructively. As a result, there is no basis for changing his SPD or RE codes. Therefore, there is no basis for removing the remark "apathy" from his narrative reason for separation. 10. As the applicant entered active duty on 1 July 1980, which is the date shown in item 12a of his DD Form 214, there is no basis for changing it to show that he entered active duty on 26 February 1980. 11. Although the applicant served in the USAR Control Group (Individual Ready Reserve) from 27 May 1982 to 30 June 1986, Reserve service performed after the period covered by a DD Form 214 is not authorized to be entered on that particular DD Form 214. As a result, there is no basis for correcting the applicant's DD Form 214 to show his Reserve service from 27 May 1982 to 30 June 1986. 12. A review of the applicant's military records revealed that he is not entitled to any additional awards and decorations beyond the Army Service Ribbon already listed on his DD Form 214; therefore, there is no basis for granting relief to this portion of the applicant's request. 13. While the applicant claims he was promised promotion to the rank of SGT by two NCOs, as the applicant never rose above the rank of private/E-2, the applicant's claim is clearly without merit. In order to be promoted to the rank of SGT, a Soldier must have appeared before a promotion board while serving in the pay grade of E-4, promotion board proceedings must be approved by the promotion authority, and he or she must be placed on a promotion standing list for promotion to SGT and meet a promotion point cutoff score. As none of these requirements were met by the applicant, there is no basis for granting relief to this portion of 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) AR20090009250 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090009250 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1