RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070000705 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Jeanette R. McCants

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 his discharge characterized as under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.  He also requests that item 28 (Narrative Reason for Separation), of his DD Form 214 (Certificate of Release or Discharge from Active Duty), be changed to show the entry "Convenience of the Government" instead of the entry "Frequent involvement in incidents of a discreditable nature with civil or military authorities", and that his Reentry (RE) Code be change from "RE-3B" to "RE-1." 

2.  The applicant states, in effect, that his UOTHC should be upgraded to an honorable discharge, and that his narrative reason be change to "Convenience of the Government" with a corresponding RE Code of "1." 

3.  The applicant provides a copy of his DD Form 214 in support of his request.  Although his application identifies a separation program designator (SPD) letter to show his SPD as "MDU", this letter was not attached to his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 5 October 1981, the date of his discharge.  The application submitted in this case is dated 25 December 2006.

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 record shows he enlisted in the Regular Army on 30 March 1979.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Benning, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11C, Indirect Fire Infantryman.  He was advanced to pay grade E-2 on 30 September 1979.


4.  Between 28 October 1980 and 18 November 1980, he received nonjudicial punishment (NJP) on two occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty on four occasions.  His punishments consisted of a reduction to pay grade E-1, forfeiture of pay, and restriction and extra duties. 

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record -
Part ll), shows that he was absent without leave (AWOL) from 1 through 6 October 1980 (6 days), AWOL on 8 October 1980 (1 day), confined by civil authorities (CCA) from 2 February through 3 March 1981 (30 days), CCA from 5 March 1981 through 6 April 1981 (33 days), AWOL on 9 June 1981 (1 day), and confined from 17 June 1981 through 23 July 1981 (37 days).  

6.  On 11 September 1981, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to his frequent incidents of a discreditable nature.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

7.  The separation authority approved the recommendation for discharge on 29 September 1981 and directed that he be furnished an UOTHC discharge.  The applicant was discharged on 5 October 1981.  He had a total of 2 years, 2 months, and 11 days of creditable service and 108 days of lost time due to AWOL and confinement.  

8.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "JKA."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows the entry "3B" and the narrative reason for his separation is, "Frequent involvement in incidents of a discreditable nature with civil or military authorities."

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

10.  Army Regulation 635-200, in effect, at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Paragraph 
14-33b pertained to patterns of misconduct, which included; frequent incidents of discreditable nature with civil or military authorities, an established pattern of shirking, or showing dishonorable failure to pay just debts.

11.  Paragraph 5-3 of Army Regulation 635-200 pertains to the separation of enlisted personnel for the convenience of the government.  It states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the government will be at the Secretary’s discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

12.  Army Regulation 635-200, paragraph 3-7b, provides 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.

13.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE codes.

15.  RE-3B applies to Soldiers who have lost time during their last period of service.  Soldiers are ineligible for enlistment unless a waiver is granted.

16.  RE-1 applies to persons completing their service and who are considered qualified to reenter the Army.



17.  Army Regulation 635-5-1, in effect at that 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.  The regulation shows that 
the separation program designator (SPD) "JKA", as shown on the applicant’s DD Form 214, is appropriate for involuntary discharge when the narrative reason for discharge is "misconduct, frequent incidents of a discreditable nature with civil or military authorities" and that the authority for discharge under this SPD is "Army Regulation 635-200, chapter 14, paragraph 14-33b(1)."  

DISCUSSION AND CONCLUSIONS:

1.  The type of discharge directed and the reasons therefore were appropriate
considering all of the facts of the case.

2.  The evidence of record shows that the applicant was discharged for misconduct, frequent incidents of a discreditable nature, which was evident by his four NJPs and for going AWOL on four occasions.

3.  Considering the nature of his offenses and his otherwise undistinguished record of service, there is no basis for an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

4.  The separation code of "JKA" and RE Code of "3B" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "misconduct, frequent involvement in incidents of a discreditable nature with civil or military authorities."

5.  The applicant’s narrative reason for separation is correct in accordance with regulations then in effect which shows he was assigned the proper SPD code of "JKA" which corresponds with his narrative reason "Frequent involvement in incidents of a discreditable nature with civil or military authorities."  

6.  The applicant contends that item 28 (Narrative Reason for Separation), of his DD Form 214, should be changed to read "Convenience of the Government" to correspond with an RE Code of "RE 1."  However, the evidence shows he was involuntary discharged for misconduct, frequent involvement in incidents of a discreditable nature with civil or military authorities, and not for the Convenience of the Government.  The applicant has provided no evidence to show that the narrative reason for his separation was in error or unjust.  Therefore, he is not entitled to correction of item 28 (Narrative Reason for Separation), of his DD Form 214, to show the entry "Convenience of the Government."
7.  The applicant has provided no evidence to show that the RE Code issued to him at the time of discharge was improper or inequitable or should be changed now.


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

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 October 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 October 1984.  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

___JM___  _JCR___  ___TMR_  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.




____Jeanette McCants_____
          CHAIRPERSON



INDEX

CASE ID
AR20070000705
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070731
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19811005
DISCHARGE AUTHORITY
AR 635-200, chapter 14-33b(1)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.