RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20040011231


      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             |
|     |Mr. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Carol A. Kornhoff             |     |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 reconsideration that his Reenlistment (RE) Code
of RE-3/3C be upgraded.  He also requests, in effect, that his character of
service be upgraded from general to honorable and that his discharge for
unsatisfactory performance be changed.

2.  The applicant states, in effect, that he was young and did not know how
to deal with a personality conflict he had with his battalion commander and
that the disciplinary action taken against him was extreme, unfair, and
harsh.  He further states that he was wrongly given a discharge for
unsatisfactory performance.

3.  The applicant provides a self-authored statement, three of his DD Forms
214 (Certificate of Release or Discharge from Active Duty), an AF Form 3032
(Department of the Air Force Certificate of Achievement), an extract copy
of a
DA Form 638 (Award Recommendation) for the period 15 September 2001 to
29 September 2001, and a letter recognizing the applicant for his support
of Operation Safe Skies, dated 30 May 2002, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 July 1983, the date of his discharge from the U.S. Army.
The application submitted in this case is dated 26 November 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 limitations 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.  The applicant’s personnel records show that he enlisted on 5 February
1980 for a period of three years.  The applicant successfully completed
basic and advanced individual training and was awarded military
occupational specialty 19E (Armor Crewman).  The applicant then reenlisted
on 8 September 1982 for a period of three years.  The applicant earned no
individual awards and his record documents no acts of valor, significant
achievement, or service warranting special recognition during this period.

4.  The applicant's records contain five DA Forms 4856 (General Counseling
Form) issued during the period of service under review which show that he
was extensively counseled by his superiors.  These counseling forms
document incidents of the applicant failing to prepare and report for
training, substandard military appearance, poor personal demeanor, and
failing to prepare for inspection.

5.  On 7 December 1982, nonjudicial punishment was imposed against the
applicant for failure to obey a lawful order.  His punishment consisted of
14 days restriction and extra duty.

6.  On 26 April 1983, nonjudicial punishment was imposed against the
applicant for being absent without leave, from on or about 5 April 1983,
until on or about
7 April 1983.  His punishment consisted of reduction to the grade of E-3
and
14 days extra duty.

7.  On 10 June 1983, nonjudicial punishment was imposed against the
applicant for wrongfully appearing at formation with unserviceable boots
and in an incomplete uniform, and for failure to go to his appointed place
of duty.  His punishment consisted of reduction to the grade of E-2,
forfeiture of $150.00 for one month, and 14 days restriction and extra
duty.

8.  On 21 June 1983, nonjudicial punishment was imposed against the
applicant for stealing a pair of Tanker Boots that were the property of
another Soldier.  His punishment consisted of reduction to the grade of E-
1, forfeiture of $200.00 per month for two months, and 45 days restriction
and extra duty.

9.  The applicant's records show that, on 22 June 1983, the first
lieutenant serving as commander of Headquarters and Headquarters Company,
2nd Battalion, 34th Armor, 4th Infantry Division (Mechanized), Fort Carson,
Colorado, notified the applicant of his intention to initiate separation
action against the applicant for unsatisfactory performance under the
provisions of chapter 13 of Army Regulation 635-200 (Active Duty Enlisted
Administrative Separations).  The unit commander stated the basis for his
action was because the applicant’s performance as a Soldier was
substandard.

10.  The applicant was advised by counsel on the basis for the contemplated
action to separate him for unsatisfactory performance under the provisions
of chapter 13 of Army Regulation 635-200.  The applicant indicated that he
understood he may expect to encounter substantial prejudice in civilian
life if he was issued a general discharge under honorable conditions.

11.  The company commander subsequently forwarded his recommendation for
separation action against the applicant for unsatisfactory performance.  On
27 June 1983, the assistant staff judge advocate found the separation
action against the applicant to be legally sufficient.  The commander of
the 3rd Brigade, 4th Infantry Division (Mechanized), approved the
recommendation for discharge under the provisions of chapter 13 of Army
Regulation 635-200 by reason of unsatisfactory performance.  The
requirement for a rehabilitative transfer was waived in accordance with
paragraph 1-18d of Army Regulation 635-200, and the determination was made
that the Soldier did not meet mobilization requirements for assignment to
the Individual Ready Reserve.  The brigade commander also directed that the
applicant be issued a General (Under Honorable Conditions) Discharge
Certificate.

12.  The applicant's DD Form 214 shows that he was discharged on 20 July
1983 in accordance with the provisions of chapter 13 of Army Regulation 635-
200 for unsatisfactory performance.  Item 24 (Character of Service)
confirms the applicant's discharge was Under Honorable Conditions (General)
and Item 28 (Narrative Reason for Separation) confirms the applicant's
discharge was for Unsatisfactory Performance.  Item 26 (Separation Code)
confirms the applicant was assigned a Separation Program Designator (SPD)
Code of JHJ and Item 27 (Reenlistment Code) shows he was assigned a code of
RE-3/3C.  The applicant served 10 months and 13 days of active service
during the period of service under review and, at the time, had completed 3
years, 5 months, and 16 days total active service.

13.  The applicant's records contain a DD Form 149 (Application for
Correction of Military or Naval Record Under the Provisions of Title 10,
U.S. Code, Sec. 1552), dated 11 December 1984, which shows that he
requested that his RE Code be changed from a RE-3 to a RE-1 or RE-2.  The
matter was referred to the U.S. Army Enlistment Eligibility Activity, St.
Louis, Missouri, for administrative resolution.  On 14 May 1985, the
applicant was informed by the ABCMR that the U.S. Army Enlistment
Eligibility Activity advised that he was ineligible to reenter the Regular
Army unless waivers of his last discharge and Articles 15 are granted by
the Department of the Army.  In addition, he required a waiver of the
Army's grade and service criterion since he was discharged in the grade of
E-1 after completing more than 6 months' service.  He was also advised that
the codes RE-3 and RE-3C are not normally changed since they correctly
indicated that the applicant required waivers prior to enlistment in the
Regular Army.  The ABCMR advised the applicant that recruiting personnel
have the responsibility for initially determining whether an individual
meets enlistment criteria and if waiver consideration is appropriate.

14.  The applicant's records contain a DD Form 149, dated 31 December 1986,
which shows that he again requested that his RE Code be changed from a
RE-3 to a RE-1 or RE-2.  The matter was referred to the ABCMR for
determination.  On 6 July 1988, the Board determined that the applicant had
failed to submit sufficient evidence to demonstrate the existence of
probable material error or injustice.  The Board instructed the Reserve
Personnel Center, St. Louis, Missouri, to advise the applicant that
although the ABCMR denied a change in his RE Codes, it did not mean that
the applicant had been completely denied the opportunity to reenlist.  The
Board also offered that recruiting personnel have the responsibility for
determining if an applicant meets the current enlistment criteria and are
required to process a request for waiver under the provisions of chapter 4
of Army Regulation 601-280 (Regular Army and Army Reserve Enlistment
Program).  The applicant was advised that since enlistment criteria
changes, he should periodically visit his local recruiting station to
determine his eligibility.  He was also advised that he may apply to the
Army Discharge Review Board for upgrade of his discharge.

15.  There is no evidence showing that the applicant applied for a waiver
of his RE Codes in order to enlist in the Regular Army.

16.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

17.  The applicant provides a self-authored letter, copies of his DD Forms
214, a Department of the Air Force Certificate of Achievement, an extract
of an award recommendation, and a letter of recognition he received.  In
general, the documents provide evidence of the applicant’s recent
accomplishments and good character during the period September 2001 and
December 2004.

18.  Army Regulation 635-5-1 (SPD 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.  It states, in
pertinent part, that the SPD code of JHJ is the appropriate code to assign
to Soldiers separated under the provisions of chapter 13 of Army Regulation
635-200, by reason of unsatisfactory performance.  The SPD/RE Code Cross
Reference Table included in the regulation establishes RE-3 and RE-3C as
the proper RE Codes to assign members separated with this SPD code.  RE-3
and RE-3C apply to persons not qualified for continued Army service, but
the disqualification is waivable.


19.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharge of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, provides for separation due to
unsatisfactory performance when in the commander’s judgment the individual
will not become a satisfactory Soldier; retention will have an adverse
impact on military discipline, good order and morale; the service member
will be a disruptive influence in the future; the basis for separation will
continue or recur; and/or the ability of the service member to perform
effectively in the future, including potential for advancement or
leadership, is unlikely.  Service of Soldiers separated because of
unsatisfactory performance under this regulation will be characterized as
honorable or under honorable conditions.

20.  Army Regulation 635-200, paragraph 3-7, provides 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his RE Codes of RE-3/3C should be upgraded,
his character of service should be changed from general to honorable, and
the reason for his discharge should be changed.

2.  The applicant contends, in effect, that he was young and did not know
how to deal with a personality conflict he had with his battalion commander
and that the disciplinary action taken against him was extreme, unfair, and
harsh.  He further contends that he was wrongly given a discharge for
unsatisfactory performance He also contends that his recent service in the
New Mexico National Guard warrants favorable consideration of his request.

3.  The applicant's military records show that he was over 20 years old at
the time of the incidents for which he was counseled, including the four
separate incidents which resulted in nonjudicial punishment.  There is no
evidence that indicates that the applicant was any less mature than other
Soldiers of the same age who followed the orders of their superiors and
successfully completed their military service.


4.  The applicant provides no evidence that the actions taken against him
for his indiscipline were extreme, unfair, or harsh.  In fact, the actions
taken against the applicant for his indiscipline were consistent with
actions taken by Army commanders against other Soldiers for similar
incidents of indiscipline.

5.  Evidence of records show that the applicant's separation was based upon
substandard performance as a Soldier, which included numerous incidents of
indiscipline requiring counseling of the applicant by his superiors and
several actions that resulted in the imposition of nonjudicial punishment.
The applicant's records also show that his commander determined that
further attempts to rehabilitate the applicant as a Soldier were not
justified.

6.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking evidence to
the contrary, it is determined that all requirements of law and regulations
were met and the rights of the applicant were fully protected throughout
the separation process.

7.  The record contains a properly constituted DD Form 214 that was issued
at the time of the applicant's discharge.  This document identifies the
character of service, reason for separation, and the corresponding SPD and
RE Code assignments and carries with it a presumption of regularity in the
discharge process.

8.  By regulation, the RE Codes assigned the applicant were the proper
codes to assign members separating under the provisions of chapter 13, Army
Regulation
635-200, unsatisfactory performance.  As a result, the codes (i.e., RE-3
and
RE-3C) were and still are appropriate based on the authority and reason for
his separation.  Therefore, the applicant is not entitled to have his RE
Codes of
RE-3/3C upgraded.

9.  The applicant’s service record shows instances of failing to follow the
lawful orders of his superiors, failure to report to his appointed place of
duty, theft of another Soldier's personal property, and being absent
without leave.  The applicant’s record of service clearly shows that his
overall quality of service did not meet the standards of acceptable conduct
and performance of duty for Army personnel and continued service in the
Army.  Therefore, the applicant is not entitled to an honorable discharge
or a change to the reason for his discharge.



10.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 July 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
19 July 1986.  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

___JS___  __ENA__  __CAK __  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.




                                  _______John Slone_________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040011231                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19830705                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 13                  |
|DISCHARGE REASON        |Unsatisfactory Performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |144.0135.0000                           |
|3.                      |144.4900.000                            |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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