RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         01 FEBRUARY 2005
      DOCKET NUMBER:  AR2004106644


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the his SPD (separation program designator)
Code, his RE (Reentry) Code, and the narrative reason for his 1983
separation from active duty be changed to permit him to rejoin the
California Army National Guard in an Active Guard Reserve capacity.  He
specifically requested that his RE-3 be corrected to RE-1 and the narrative
reason for his separation be corrected from “unsatisfactory performance” to
“hardship.”

2.  The applicant states, in effect, that his current SPD Code, RE Code,
and reason for separation, reflected on his 1983 separation document, make
him ineligible to “ascend to an Active Guard Reserve position” which he is
qualified for.  He states that he regrets the actions which led to his
early separation from the Army and since that time has matured into a
responsible, productive adult.

3.  He states that he enlisted at the age of 17 and had no previous
experience with prolonged separation from home and was stationed half way
around the world.  He cites his age, lack of sophistication, and overall
immaturity, as contributing factors in his requesting an early separation
from active served and notes that he did receive an honorable discharge.

4.  The applicant provides a copy of the 1999 waiver enabling him to enlist
in the California Army National Guard, a copy of his 1988 honorable
discharge certificate from the United States Army Reserve, an academic
evaluation report showing successful completion of the aviation operations
specialist course, a copy of orders awarding him the California Enlisted
Excellence Ribbon in 2001, and an Army Achievement Medal in August 2001.
He also submits copies of three statements recommending his accession into
an Active Guard Reserve position, and a copy of his resume.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 January 1983.  The application submitted in this case
is dated
27 March 2004.

2.  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 allows the Army Board for Correction
of Military Records (ABCMR) to excuse failure to file within the 3-year
statute of limitation if the ABCMR determines that it would be in the
interest of justice to do so.  In this case, the ABCMR will conduct a
review of the merits of the case to determine if it would be in the
interest of justice to excuse the applicant’s failure to timely file.

3.  Records available to the Board indicate that the applicant entered
active duty on 6 January 1982 after having reached his 18th birthday on 18
December 1981. He had approximately 9 months of time in the Delayed Entry
Program prior to entering active duty in January 1982.

4.  At the time of his entry on active duty he was a high school graduate
and had a GT (general technical) score of 122.  He enlisted for training as
a military policeman and utilization within a United States Army Electronic
Warfare/Cryptologic organization.

5.  The applicant successfully completed OSUT (one station unit training)
and in May 1982 was assigned to the United States Army Field Station, part
of the Army Security Agency, in Turkey.

6.  He was promoted to pay grade E-2 in July 1982.  He was promoted to pay
grade E-3 on 30 December 1982 after receiving a waiver for the time in
service requirement.

7.  On 15 January 1983 the applicant’s commander recommended that the
applicant be immediately released from active duty under the provisions of
Army Regulation 635-200, Chapter 13.  The commander based his
recommendation on a 4 January 1983 statement by the applicant to the AFOSI
(Air Force Office of Special Investigations) in which he (the applicant)
stated that on 23 October 1982 he “manually stimulated his then-roommate
until he reached sexual climax, even though his roommate was unable to
resist due to intoxication.”  The commander indicated that “due to the
sensitivity of the matter to [the applicant] and to his section, the matter
should not be held up before public scrutiny as in a disciplinary case.”
He noted that the matter has a serious impact on military discipline and
morale, and that “it will very likely recur per [the applicant’s] own
inference in his statement to the AFOSI….”  The commander stated that the
applicant “has therefore little potential for advancement and leadership in
the Army” and indicated that the “most effective disposition of the case”
was via utilization of Chapter 13.

8.  The applicant acknowledged receipt of the proposed separation action,
declined to consult with counsel, and did not submit any statements in his
own behalf.

9.  The recommendation for separation was approved and on 26 January 1983,
at the age of 19, the applicant was released from active duty with an
honorable characterization of service.  His separation document indicates
that he received an SPD Code of LHJ, an RE Code of 3, and that the
narrative reason for his separation was “unsatisfactory performance.”

10.  In January 1988, at the conclusion of his statutory service
obligation, he was honorably discharged from the United States Army
Reserve.

11.  On 24 April 1999 the applicant requested consideration of his
application for enlistment in the Army National Guard.  He indicated in
that request that he entered the Army in 1982 and served honorably until
release in 1988.  He stated that “being immature at that time, I allowed
things to upset me that I really shouldn’t have.  The result was I
requested discharge from the Active Army which resulted in my RE-3 Code.”
He indicated that he had been working for “Casa For Kids” for several years
as a child advocate, and felt that the Guard Challenge program “will help
many unfortunate kids.”

12.  The applicant was granted a waiver for his RE-3, SPD Code, and for the
reason for his separation from active duty, and permitted to enlist in the
California Army National Guard on 30 April 1999.

13.  According to a Report of Separation and Record of Service from the
California Army National Guard, the applicant was honorably discharged from
the Army National Guard on 29 April 2003.  The reason for separation was
recorded as “expiration of service obligation.”  Although the applicant
indicated in his application to the Board that he was a current member of
the Army National Guard, there was no new enlistment contract in records
available to the Board.

14.  The three statements, provided by the applicant in support of his
petition to this Board, indicate, in effect, that the applicant is highly
motivated and would be an asset to the training element of the 40th
Aviation Brigade.  None of the statements speak directly to the basis for
the applicant’s 1983 separation from active duty.




15.  Army Regulation 635-200, Chapter 13, in effect at the time, provide
for the administrative separation of Soldiers for unsatisfactory
performance.  It stated that commander would separate a member for
unsatisfactory performance when it is clearly established that, in the
commander’s judgment, the member will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
Soldier, or the seriousness of the circumstances is such that the member’s
retention would have an adverse impact on military discipline, good order,
and morale, and it is likely that the member will be a disruptive influence
in present or future duty assignments, and it is likely that the
circumstances forming the basis for initiation of separation proceedings
will continue or recur, and the ability of the member to perform duties
effectively in the future, including potential for advancement or
leadership is unlikely.  The service of Soldiers discharged under the
provisions of Chapter 13 was characterized as honorable or under honorable
conditions as warranted by their military record.

16.  Army Regulation 635-200, Chapter 15, provided for the separation of
enlisted Soldiers for homosexuality.  It stated that a Soldier would be
separated if the Soldier engaged in, attempted to engage in, or solicited
another to engage in a homosexual act.  Separation under the provisions of
Chapter 15, generally required investigations and or board action and could
result in separation under other than honorable conditions, particularly
when the homosexual act occurred in a location, subject to military
control, if the conduct had, or was likely to have had, an adverse impact
on discipline, good order, or morale due to the close proximity of other
members of the Armed Forces.

17.  Chapter 6 of Army Regulation 635-200, in effect at the time, provide
for the separation of enlisted Soldiers because of hardship.  It noted that
a hardship exited when in circumstances not involving death or disability
of a member of the Soldier’s immediate family, separation from the Service
would materially affect the care or support of the family by alleviating
undue and genuine hardships.

18.  Army Regulation 635-5-1, in effect at the time, prescribed the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
separation program designators to be used for these stated reasons.  It
indicates that "unsatisfactory performance" was the appropriate narrative
reason for discharge when the authority is "Chapter 13 AR 635-200."  It
also noted that “LHJ” was the appropriate SPD Code.

19.  Pertinent Army regulations provide 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
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the United States Army Reserve.
Chapter 3 of that regulation prescribed basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
Codes, including RA RE Codes.

20.  RE-3 applies to persons who were not considered fully qualified for
reentry or continuous service at the time of separation, including those
discharged for unsatisfactory performance.

21.  A “cross-reference” chart, provided by officials from the separations
branch at the United States Army Human Resources Command-Alexandria,
confirms that “RE-3” is the appropriate RE code for individuals who receive
an SPD code of LHJ.

DISCUSSION AND CONCLUSIONS:

1.  While the evidence does suggest that the applicant should more
appropriately have been discharged under the provisions of Chapter 15 of
Army Regulation 635-200, clearly the evidence shows that his commander
wished to avoid embarrassment to all parties which such a separation action
might involve.  The applicant’s commander instead, chose to handle the
separation actions as expeditiously as possible, with minimal involvement
of other individuals, and as such, elected to pursue separation for
unsatisfactory performance, which would not have required any board action
or prolonged investigation.

2.  Contrary to the applicant’s statement in his 1999 petition to enlist in
the Army National Guard, and the statement in his petition to this Board,
he did not request an early separation.  Rather, the separation action was
involuntary, and at the instigation of his commanding officer.

3.  The applicant acknowledged receipt of the proposed separation action
and elected not to consult with counsel or submit statements in his own
behalf.  Such action is an indication that the applicant wished to exit the
Army quickly and with the least amount of publicity.  He has presented no
evidence of any error or injustice in his separation action.

4.  The applicant’s argument that he was young, lacked sophistication, and
was immature, is not sufficiently mitigating to warrant the corrections
that he is seeking, nor is it supported by any evidence of record.  The
applicant was well educated, as evidence by his GT score of 122,
successfully completed training, and was promoted ahead of his peers, all
of which shows his level of maturity and sophistication, in spite of his
young age and absence from home.
5.  Additionally, the applicant’s argument that his honorable service in
the Army National Guard should serve as a basis for correcting his 1983
separation action, is also not sufficiently justifiable, particularly
considering that the applicant was not entirely honest in his 1999 petition
to have his previous disqualifications waived in order to enlist in the
Army National Guard.  Had he been entirely honest regarding the true basis
for his 1983 separation action, it is questionable whether such a waiver
would have been granted.

6.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  In fact, it appears,
based on the evidence that is available, that the separation route that his
commander chose to pursue was actually more advantageous to the applicant
than being separated for homosexuality.  His 1983 separation document
accurately reflects the appropriate narrative reason for separation, the
appropriate RE Code, and the appropriate SPD Code based on his separation
under the provisions of Army Regulation 635-200, Chapter 13.

7.  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 has failed to submit evidence that would
satisfy that requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 January 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 January 1986.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WM__  ___JM __  ___WP  _  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Walter Morrison_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106644                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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