IN THE CASE OF:	

		BOARD DATE:	  18 December 2008

		DOCKET NUMBER:  AR20080007148 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request to upgrade his general, under honorable conditions discharge to an honorable discharge.  He also requests that his reentry (RE) code be upgraded to RE code 1 and that his narrative reason for separation be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 April 2004.

2.  The applicant states, in effect, that he was treated unfairly by his superiors and that his discharge does not reflect the true events and circumstances.

3.  The applicant provides, in support of his application, a Certificate of Training for Basic Training; a copy of Headquarters, United States Army Infantry Center Permanent Orders 282-242, dated 9 October 1998, awarding him the Parachutist Badge and military occupational specialty (MOS) 77F1P [Petroleum Supply Specialist, parachutist qualified]; a DA Form 1059 (Service School Academic Evaluation Report) for course title 11B1O MOSQ TATS 03-M02; a modified automated DA Form 5286-R (Individual Training Record) for a Calvary Scout course; a Certificate of Training for the Combat Lifesaver Course; a diploma for successfully completing the Basic Rifle Infantryman (Skill Level 1) course; a copy of Headquarters, 1st Battalion, 120th Infantry, Fort Stewart, GA memorandum, subject:  Request to Release Soldier from Deployment and Discharge, dated     11 November 2003; a redacted extract of a memorandum, subject:  Review of Commander's Inquiry (Complainant:  [the applicant], prepared by the Garrison Equal Opportunity Advisor; a photocopy of a news article "Guard general faces lawsuit; Dismissed soldier says rights violated"; and an undated hand-written letter of support from a noncommissioned officer.
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011666 on 23 October 2007.

2.  The documents provided as evidence with this application were not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  As stated in the previous case, the facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, records show that on 5 December 2003 the separation authority approved a recommendation for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance and directed that the applicant be furnished a general discharge.
 
4.  Item 25 (Separation Authority) on the applicant's DD Form 214 for the period ending 9 April 2004 shows the entry, "AR [Army Regulation] 635-200, CHAP [chapter] 13."  Item 26 (Separation Code) on this DD Form 214 shows the entry, "JHJ."  Item 27 (Reentry Code) on this DD Form 214 shows the entry, "3."  Item 28 (Narrative Reason for Separation) on this DD Form 214 shows the entry, "UNSATISFACTORY PERFORMANCE."

5.  The certificates of training, academic evaluation report, and badge and military occupational specialty award order provided by the applicant indicate he successfully completed four military training courses.

6.  The memorandum, subject:  Request to Release Soldier from Deployment and Discharge provided by the applicant indicated that the applicant was not fit for deployment or any type of military service.

7.  The redacted extract of a memorandum, subject:  Review of Commander's Inquiry, the photocopy of a news article, and the undated hand-written letter of support from a noncommissioned officer do not address the circumstances of the discharge proceedings or compliance with regulatory policy in effect at the time of his discharge.

8.  On 13 November 2006, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

9.  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 general under honorable conditions.

10.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces reentry codes.

11.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

12.  RE code 1 applies to persons completing an initial term of active service who were considered qualified when last separated.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes 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 states the reason for discharge based on separation code "JHJ" is "Unsatisfactory Performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

14.  The SPD Code/RE Code Cross Reference Table, dated 31 March 2003, shows that when the SPD code is "JHJ" then an RE code of 3 will be given.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his general discharge be upgraded to honorable, his RE code be upgraded to an RE code 1, and his narrative reason for separation be removed from his DD Form 214 was carefully considered and determined to be without merit.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

4.  The applicant's narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.

5.  Based on the foregoing, there is insufficient evidence to support the applicant's request for upgrading his discharge to honorable, upgrading his RE code to a 1, or removing his narrative reason for separation from his DD Form 214 for the period ending 9 April 2004.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X__  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 to amend the decision of the ABCMR set forth in Docket Number AR20070011666, dated 23 October 2007.



      __________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080007148



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ABCMR Record of Proceedings (cont)                                         AR20080007148



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