IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009378 


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 that his general discharge be upgraded to honorable and that he be given a better Reenlistment (RE) Code. 

2.  The applicant states that he was never given counseling or rehabilitation as required by paragraph 13-4.  He goes on to state that he had asked for a transfer and it was not until he had received orders transferring him to Fort Carson, Colorado that he was chaptered out of the service.  He also states that he is trying to get back into the service.

3.  The applicant provides no additional documents with his application. 

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 enlisted in the Regular Army at Indianapolis, Indiana on 13 March 1980, for a period of 3 years, training as a combat engineer and assignment to Europe.

3.  He completed his one-station unit training (OSUT) at Fort Leonard Wood, Missouri and was transferred to Aschaffenburg, Germany on 5 May 1981, for assignment to an engineer company.   He was advanced to the pay grade of E-2 on 15 July 1981. 

4.  On 30 September 1981, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from his first sergeant to get his hair cut.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.  His punishment was suspended for 60 days.  He did not appeal his punishment. 

5.  The applicant was advanced to the pay grade of E-3 on 16 June 1982 and on 16 August 1982, NJP was imposed against him for the wrongful possession of marijuana in hashish form and for disobeying a lawful order by being in a bar in duty uniform.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty, and restriction.  He did not appeal the punishment.   

6.  On 28 August 1982, the applicant’s commander initiated action to bar the applicant from reenlistment.  The commander cited the applicant’s disciplinary record, his continuous display of poor conduct, a pending action for assault and communicating a threat, and his having to be transferred to another platoon based on his poor performance as the basis for his recommendation.  There is no indication in the available records to show that the recommendation was processed to completion.    

7.  On 26 October 1982, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 13-2 for unsatisfactory performance.  He cited as the basis for his recommendation the applicant’s numerous on and off duty incidents that had caused his performance to be less than satisfactory and involved drugs and assault.  He also indicated that the applicant had failed to respond to numerous counseling sessions and provided seven counseling statements with his recommendation.  He further indicated that continued retention in the service would not only be detrimental to the Army but to the applicant as well.  The commander requested that a waiver for a rehabilitative transfer be granted based on the serious nature of the applicant’s misconduct.

8.  The applicant declined the opportunity to consult with counsel, waived all of his rights, and elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the waiver of a rehabilitative transfer and the recommendation for discharge.  He directed that the applicant be furnished a General Discharge Certificate and that he not be transferred to the Individual Ready Reserve.

10.  Accordingly, he was transferred to Fort Dix, New Jersey where he was discharged under honorable conditions on 22 November 1982 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 2 years, 8 months, and 10 days of total active service and was issued an RE Code of “3.”

11.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  A discharge under honorable conditions is normally considered appropriate.

13.  Paragraph 1-18 of that regulation provides, in pertinent part, that the requirement for a rehabilitative transfer may be waived by the separation authority upon determination by the separation authority that further duty of the member would create serious disciplinary problems or hazard to the military mission or to the member, that a transfer would be inappropriate because the member is resisting rehabilitation attempts, or that rehabilitation would not be in the best interests of the Army as it would not produce a quality Soldier.

14.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.

15.  Paragraph 3-7b also 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.

16.  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 processing into the Regular Army and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

17.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received nonjudicial punishment are so disqualified, as are persons with bars to reenlistment, and those discharged under the provisions of chapters 5, 9, 10, 13, 14, and 16 of Army Regulation 635-200.  A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed in such a short period of service.  His service simply does not rise to the level of a fully honorable discharge. 
  
4.  The applicant has failed to show through the evidence submitted or the evidence of record that he was issued the wrong RE Code at the time of his separation.  Although he is not precluded from applying for a waiver of his RE Code at a nearby recruiting office, there is no basis for the Board to change his RE Code.
  


5.  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 that requirement.
  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080009378



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ABCMR Record of Proceedings (cont)                                         AR20080009378



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