RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070003254 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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 general discharge under honorable conditions be upgraded to an honorable discharge; a change in the reason for his discharge to “convenience of the government”, along with a corresponding change to the Separation Program Designator (SPD) code; and a Reentry Eligibility (RE) code of RE-1.  

2.  The applicant states, in effect, that his discharge was improper because it was based on an isolated incident when he was granted emergency leave based on the birth of his son and he subsequently went absent without leave (AWOL).  He also states, in effect, that his conduct and efficiency ratings were good, he was a good Soldier who enjoyed his job, and he got along well with other Soldiers.  He further states, in effect, that his command abused its authority when it decided to give him a “bad” discharge.

3.  The applicant provides a self-authored statement, undated; DD Form 214 (Report of Separation From Active Duty), with an effective date of 26 March 1976; Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Special Orders Number 61, dated 26 March 1976; Headquarters,
114th Aviation Company (Assault Helicopter Separate), Fort Clayton, Canal Zone, memorandum, dated 16 March 1976, subject: Expeditious Discharge Program with endorsements 1 - 4 and 10 enclosures; 2 DD Forms 4 (Enlistment Contract – Armed Forces of the United States), dated 21 March 1975 and 7 April 1975; DA Form 2-1 (Personnel Qualification Record); U.S. Army Aviation Center Diploma, dated 27 August 1975; Team-Hornet Certificate for the Month of April (undated); Automotive Training Corporation of America (ATCOA) Certificate, dated 2 January 1979; Los Angeles Trade Technical College, Los Angeles, California, Student Grade Report, dated 20 June 1981; 2 McDonnell Douglas, St. Louis, Missouri, Pay Statements, dated 29 September 1991 and 20 October 1991; and Desert Edge High School, Certificate of Completion, dated
27 September 2002.

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 service records show that he enlisted in the U.S. Army Reserve (USAR) on 21 March 1975 and entered active duty in the Regular Army (RA) for a period of 3 years on 7 April 1975.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  On 7 October 1975, he was assigned to the 114th Aviation Company (Assault Helicopter Separate), Fort Clayton, Canal Zone.  The highest rank the applicant attained was private/pay grade E-2.

3.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 26 March 1976, that shows the applicant's duty status was changed from ordinary leave to absent without leave (AWOL), effective 0001 hours, 19 January 1976.

4.  The applicant's military service records contain a DA Form 4187 that shows the applicant's duty status was changed from AWOL to present for duty (PDY), effective 2330 hours, 28 January 1976.

5.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 21 (Time Lost) of this document shows that the applicant was AWOL for 18 days, from 10 January 1976 through 27 January 1976 and Item 27 (Remarks) contains the entry, “RE-4 NOT ELIG FOR REENL.”

6.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 February 1976.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0001 hours, 9 January 1976, without authority, failure to report in from leave at the U.S. Army Liaison Office, Charleston, Air Force Base, South Carolina, and did remain so absent until 1900 hours, 26 January 1976.  The punishment imposed was restriction to the unit area for a period of 45 days;
2 hours of daily extra duty for a period of 30 days; reduction to the grade of E-1; and forfeiture of $75.00 per month for 2 months.


7.  On 16 March 1976, the applicant was notified by his unit commander that separation action under the Expeditious Discharge Program, as provided in paragraph 5-37 of Army Regulation 635-200, was being initiated against him and that a general discharge was being recommended.  The reasons for the separation action cited by the unit commander were the applicant’s lack of discipline since being assigned to the unit; being AWOL from 10 January 1976 through 26 January 1976; punishment under the UCMJ; and the lack of interest in his job, along with a substandard performance compared to his peers, as documented by his supervisors.  The applicant was also informed that he had the right to decline the discharge and to submit statements in his own behalf.

8.  The applicant acknowledged that he had received the separation notification, indicated that he was voluntarily accepting the discharge from the Army, and that he waived his right to submit a statement in his own behalf.  The applicant also acknowledged that he understood that if he received a general discharge under honorable conditions, he could expect to encounter substantial prejudice in civilian life and acknowledged that he had been provided the opportunity to consult with an officer of the Judge Advocate General Corps.

9.  The applicant’s unit commander forwarded the separation action to the approving authority.  Enclosed with the commander’s endorsement, in pertinent part, were 2 statements from the applicant’s superior noncommissioned officers, dated 2 March 1976, which show that the applicant was counseled about his poor attitude toward his duties, the other Soldiers on his team, and the Army.  

10.  On 18 March 1976, the separation authority approved the separation action under the provisions of Army Regulation 635-200, paragraph 5-37, and directed that the applicant be issued SPD “JGF”, RE Code 3, and furnished a General Discharge Certificate.  The applicant was discharged on 26 March 1976.

11.  The DD Form 214, issued to the applicant on the date of his discharge, shows that he was separated under honorable conditions under the provisions of paragraph 5-37, Army Regulation 635-200; issued SPD “KMN”; and RE Code “RE-4.”  The applicant's DD Form 214 also shows he completed 11 months and
2 days net active service; had 18 days of time lost under Title 10, United States Code 972; and 10 days excess leave from 30 December 1975 through 9 January 1976. 

12.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

13.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

14.  In support of his application, the applicant provides the following documents:

     a.  Two DD Forms 4, dated 21 March 1975 and 7 April 1975; Personnel Qualification Record); and U.S. Army Aviation Center Diploma, dated 27 August 1975.  These documents, in pertinent part, document that the applicant entered the USAR for a period of 6 years on 21 March 1975; entered active duty in the RA for a period of 3 years on 7 April 1975; and provide a summary of his military service, training, qualifications, and assignments.

     b.  Headquarters, 114th Aviation Company (Assault Helicopter Separate), Fort Clayton, Canal Zone, memorandum, dated 16 March 1976, subject: Expeditious Discharge Program with endorsements 1 – 4 and 10 enclosures; Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Special Orders Number 61, dated 26 March 1976; and DD Form 214, with an effective date of 26 March 1976, document the applicant’s separation processing and, in pertinent part, show that the three documents the applicant refers to in his application to this Board as “discovery documents” were included in, and part of, the separation action that was initiated by his commander at the time.

     c.  The Team-Hornet Certificate for the Month of April (undated); ATCOA Certificate, dated 2 January 1979; Los Angeles Trade Technical College, Student Grade Report, dated 20 June 1981; McDonnell Douglas Pay Statements, dated 29 September 1991 and 20 October 1991; and Desert Edge High School, Certificate of Completion, dated 27 September 2002, in pertinent part, document the applicant’s training, education, and achievements subsequent to his discharge from the Army.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.

16.  Army Regulation 635-200, Chapter 5 (Separation for Convenience of the Government), Section II (Secretarial Authority), paragraph 5-1, provides that the separation of enlisted Soldiers for the convenience of the Government is a prerogative of the Secretary of the Army and will be accomplished only by his authority.  Except as delegated by this regulation 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 in the Secretary’s discretion with issuance of an honorable or general discharge certificate as determined by him.  Chapter 5 of this Army regulation also provides the categories for authorizing the discharge of Soldiers for the convenience of the Government.

17.  Army Regulation 635-200, Chapter 5, paragraph 5-37, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program (EPD).  The EPD provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An honorable discharge or general discharge could be issued under this program.  

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, 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 identifies the SPD code of “KMN” as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 5-37, based on failure to maintain acceptable standards for retention (Expeditious Discharge Program).  (Note: The previous edition of this Army regulation identified the SPD code of “JGF” as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 5-37; however, this Army regulation was no longer in effect at the time of the applicant’s discharge.  In addition, Army Regulation 635-5-1 does not list “convenience of the government” as a reason for separation and, therefore, there is no corresponding SPD code.)

19.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, provided, in pertinent part, that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  RE-4 applied to persons with a condition barring immediate reenlistment and who were considered ineligible for reentry or continuous service at the time of separation unless a waiver was granted.


20.  Army Regulation 601-210 also provides that, prior service Army personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Prior service applicants requesting enlistment in the Army who have correct RE codes will be processed for a waiver at their request, if otherwise qualified and waiver is authorized.  However, no requirement exists to change an RE code to qualify for enlistment.  Only when there is evidence to support an incorrect RE code or when there is an administrative error will an applicant be advised to request a correction.

21.  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.

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge.  He also contends, in effect, that the reason for his discharge should be changed to “convenience of the government,” along with a corresponding change to the SPD and RE codes because his discharge was based upon an isolated incident during his military service.  The applicant’s contentions were carefully considered; however, he provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the three documents the applicant submits with his application to this Board as ‘discovery documents’ were, in fact, part of his separation action.  The information contained in the documents was conveyed to the applicant by his commander, and the information was properly considered by the separation authority prior to arriving at his decision concerning the applicant’s discharge.  Thus, the “discovery documents” the applicant submits offer no new evidence concerning his separation processing and discharge.
3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, paragraph 5-37, was not based upon one isolated incident, but several acts of indiscipline, including being AWOL from 10 January 1976 through 26 January 1976, punishment under the UCMJ, lack of military discipline, and a lack of interest and substandard performance in his job.

4.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms that the applicant voluntarily consented to the discharge and that his discharge accurately reflects his relatively short and undistinguished record of service.  The evidence of record also shows that the character of service, reason for separation, SPD code, and RE code recorded on the applicant’s DD Form 214 are proper and correct.  Therefore, the applicant is not entitled to correction of his DD Form 214.

5.  The applicant’s record of service, which shows 18 days AWOL, punishment under UCMJ, 10 days excess leave, and completion of only 11 months and
2 days of his 36-month enlistment did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is also not entitled to correction of his records to show he was honorably discharged.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JCR__  ___DAC_  ___QAS_  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.




___Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20070003254
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/09/20
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19760326
DISCHARGE AUTHORITY
AR 635-200, Paragraph 5-37
DISCHARGE REASON
Expeditious Discharge Program
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.