IN THE CASE OF:	

		BOARD DATE:	23 June 2009  

		DOCKET NUMBER:  AR20090002139 


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 1983 general discharge be upgraded to honorable.  He also requests that his separation authority, separation code, reenlistment (RE) code, and narrative reason for separation be changed.

2.  The applicant states, in effect, that upon leaving the Army in 1983 he received a general discharge for unsatisfactory performance.  He contends that he was 
17 years old and it was over 20 years ago.  He also points out that he has since returned to the Army National Guard, that he has been an outstanding Soldier, that he has three honorable discharges, that he served in Iraq, and that he was promoted to staff sergeant.  He also contends that his chain of command feels that he should be eligible for an Active Guard Reserve position because he has a proven service record of stellar performance.       

3.  The applicant provides copies of DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 25 August 1983 and 
6 December 2005 in support of 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 was born on 12 November 1964.  He enlisted in the Regular Army on 7 September 1982 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 15D (lance missile crewmember).

3.  On 21 April 1983, nonjudicial punishment was imposed against the applicant for using disrespectful language.  His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

4.  On 23 May 1983, the applicant received a Letter of Admonishment for having a less than satisfactory attitude, bearing, and duty performance. 

5.  On 14 June 1983, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  On 11 July 1983, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay and 7 days of correction custody.

7.  Between 11 April 1983 and 26 July 1983, the applicant was counseled on 
seven occasions for missing formations, failing to make the platoons clean up area, failure to follow instructions, disobeying orders, not showing up for Organization Day, repeated offenses of misconduct, and disrespect. 

8.  On 21 July 1983, a bar to reenlistment was imposed against the applicant.

9.  On 5 August 1983, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.

10.  On 8 August 1983, the applicant consulted with counsel and waived his rights.  He also acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

11.  On 17 August 1983, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.
    
12.  Accordingly, the applicant was discharged with a general discharge on 
25 August 1983 under the provisions of Army Regulation 635-200, chapter 
13, for unsatisfactory performance.  He had served a total of 11 months and 
19 days of creditable active service.  

13.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "Chapter 13, AR [Army Regulation] 635-200."  Item 26 (Separation Code) on his DD Form 214 shows the entry "JHJ."  Item 27 (Reenlistment Code) on his DD Form 214 shows the entry "RE-3."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "Unsatisfactory performance."

14.  The applicant enlisted in the Army National Guard on 9 November 2003.  He was ordered to active duty on 3 October 2004 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 22 December 2004 to 7 November 2005.  On 6 December 2005, he was honorably released from active duty.  He was promoted to staff sergeant effective 15 May 2008.  

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

16.  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 under honorable conditions.

17.  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.  

18.   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 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 RE codes.

19.  RE-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.

20.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

21.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted in the Regular Army in 1982, he successfully completed One Station Unit Training.    

2.  The applicant’s administrative separation in 1983 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

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

4.  The applicant's honorable service in the Army National Guard, including his combat service in Iraq, following his release from active duty in 1983 was carefully considered.  However, since his brief record of service in 1983 included numerous adverse counseling statements, three nonjudicial punishments, and a bar to reenlistment, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  The applicant's separation authority, separation code, RE code, and narrative reason for separation are correct and were applied in accordance with the applicable regulations.

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 for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20090002139





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ABCMR Record of Proceedings (cont)                                         AR20090002139



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