RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 AUGUST 2005
      DOCKET NUMBER:  AR20040011256


      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. Melvin Meyer                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. James Gunlicks                |     |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, in effect, that the reason for his 1983
separation from active duty be changed.  He also asks that his separation
code and RE (Reentry) code be changed.

2.  The applicant states that he was given an ultimatum by his drill
sergeant and notes that his spouse would have died if he had not returned
home.  He states that he was subsequently able to enlist in the Army
National Guard and has now served in that component for 8 years.  He states
that he believes his background and education could enhance the military if
he was able to “achieve higher rank.”

3.  The applicant provides a copy of his 1983 separation document, a copy
of a 1996 statement regarding his request to obtain a waiver to enlist in
the Army National Guard, a copy of a 2003 extension to his 1996 National
Guard enlistment contract, and copies of documents showing his completion
of various military training courses since his enlistment in the Army
National Guard.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 August 1983.  The application submitted in this case
is dated
17 September 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.  Records available to the Board indicated that the applicant enlisted in
the Regular Army, for a period of 3 years and entered active duty on 6 July
1983.  The applicant was 21 years old at the time of his enlistment and his
spouse was 18 years old.  He was assigned to Fort Jackson, South Carolina
for basic combat training.

4.  According to the applicant’s 1996 statement submitted as part of his
enlistment process into the Army National Guard, he stated that at the time
of his 1983 enlistment in the Regular Army he “was recently married and
before shipping to basic my wife was due with our first child.”  He stated
that his spouse was “about 5 months into the pregnancy when she developed
acute toxemia” and that when notified by the Red Cross he requested to go
home from basic.  He stated he was not given an opportunity to come back to
basic training or complete it at a later date but was given “the ultimatum
of either stay or be discharged.”  He stated that at his age and “fearing
for my wifes [sic] condition and my first childs [sic] I felt compelled to
be with her.”

5.  Documents in the applicant’s file indicate that on 28 July 1983 he was
counseled for lack of motivation.  The counseling official noted that the
applicant did not want to stay in the Army, that he was in poor physical
condition, did not listen to instructions, and did just enough to make it
through that day.  The counselor noted the applicant did not want to stay
in the Army and recommended that he be discharged.  The applicant
acknowledged the counseling statement and made no comments.

6.  On 10 August 1983 the applicant was counseled again regarding his lack
of maturity, substandard performance and poor attitude.  The counseling
official noted that the applicant was extremely homesick, had no desire to
remain in the military, and that other members of his platoon were
completing his tasks in order for the platoon to meet its goals.  It was
again recommended that the applicant be administratively discharged.  The
applicant acknowledged the counseling, but made no comments.

7.  On 11 August 1983 the applicant’s commander initiated actions to
administratively separate the applicant from active duty under the
provisions of Army Regulation 635-200, chapter 11.  The basis for the
recommendation was the applicant’s substandard performance, lack of
motivation and poor attitude toward training.

8.  The applicant acknowledged receipt of the proposed separation and
indicated that he understood that he would receive an entry level
separation and that his service would be uncharacterized.  He also
acknowledged that he understood that he would not be permitted to apply for
reenlistment in the United States Army within 2 years of his separation.
He waived his attendant rights, including the right to consult with counsel
and to make statements in his own behalf.

9.  The separation action was approved and on 26 August 1983 the applicant
was discharged from active duty.  His narrative reason for separation (item
28) on his separation document is recorded as “entry level status
performance and conduct.”  He received a separation code (item 26) of JGA
and an RE code (item 27) of 3.
10.  Documents provided by the applicant indicate that he returned to
military service with the Army National Guard and in June 2003 extended his
enlistment contract for an additional 3 years, thereby establishing his
separation date as July 2006.  At the time of his extension, he was serving
in pay grade E-5.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation provides
for the separation of personnel in an entry level status, as a result of
entry level performance or conduct, who cannot or will not adapt socially
or emotionally to military life or who have demonstrated character and
behavior characteristics not compatible with satisfactory continued
service.  These provisions apply only to individuals whose separation
processing is started within 180 days of entry into active duty.

12.  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 "entry level status performance and conduct” was the
appropriate narrative reason for individuals discharged under the
provisions of Army Regulation 635-200,
chapter 11.  It also noted that “JGA” was the appropriate separation code.

13.  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.  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 entry level status performance
and conduct.

14.  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
a separation code of JGA.






DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s 1983 separation and counseling documents do
note that he was homesick, there is no mention, by the applicant or members
of his chain of command, that he was being forced to choose between the
Army and the health of his spouse.  While the evidence of record does not
support his argument, such an argument would not be sufficiently mitigating
to warrant the corrections that he is seeking.

2.  Additionally, the applicant’s contention that his honorable service in
the Army National Guard and his extensive military training and education
should serve as a basis for correcting his 1983 separation action, is also
not sufficiently justifiable.

3.  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.  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 11.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 August 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 August 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

___MM__  __JM____  ___JG __  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.




                                  ______Melvin Meyer_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011256                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050816                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |110.00                                  |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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