IN THE CASE OF:	  

		BOARD DATE: 	        22 May 2009

		DOCKET NUMBER:  AR20090002863 


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, that item 24 (Character of Service) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to honorable.  He also requests that item 27 (Reenlistment (RE) Code) be changed to RE-1.

2.  The applicant states that he was honorably discharged on 23 November 1999.  He also contends that he is a 12-year police officer and is attempting to purchase his military/Federal years of service for retirement.

3.  The applicant provides a copy of his DD Form 214, discharge orders from the U.S. Army Reserve (USAR), and an Honorable Discharge certificate from the USAR 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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 12 April 1989.  On 18 April 1989 he was discharged from the DEP and he enlisted in the Regular Army (RA) on 19 April 1989 for a period of
3 years.  On 9 October 1989, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, for entry level status performance and conduct.  The commander cited the applicant's inability to meet the academic standards necessary to earn the 54B military occupational specialty.  The separation authority approved the recommendation for separation and directed that the applicant receive an entry level uncharacterized discharge.

3.  On 23 October 1989, the applicant was released from active duty under the provisions of Army Regulation 635-200, paragraph 11-3a, for entry level status performance and conduct.  His character of service was uncharacterized.  

4.  Item 24 on the applicant's DD Form 214 shows the entry "Uncharacterized."  Item 26 (Separation Code) on his DD Form 214 shows the entry "LGA."  Item 
27 on his DD Form 214 shows the entry "RE-3." 

5.  The applicant was honorably discharged from the USAR on 23 November 1999. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 (Entry Level Performance and Conduct) of this regulation provides for the separation of personnel due to unsatisfactory performance or conduct (or both) while in an entry level status.  This provision of regulation applied to individuals who had demonstrated inability, lack of reasonable effort, or failure to adapt to the military environment.  The regulation states that a Soldier is in an entry level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.  The Soldier’s service is uncharacterized when separated under this chapter.

7.  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.  

8.  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.

9.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Army Regulation 601-210, in effect at the time, stated in pertinent part, that a discharge by reason of entry level status performance or conduct was a waivable disqualification.
 
10.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his character of service be changed to show he received an honorable discharge was noted.  However, the applicant did not receive an honorable discharge from his active duty service ending on 
23 October 1989.  He received an honorable discharge from the USAR.  A DD Form 214 covers the Soldier’s most recent period of continuous active duty.  The applicant was released from active duty and his character of service was uncharacterized.  The entry in item 24 on his DD Form 214 is correct and in accordance with the governing regulations.  Therefore, there is no basis for granting the applicant’s request to amend item 24 on his DD Form 214.

2.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

3.  The RE code used in the applicant’s case is correct and was 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)                                         AR20090002863



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ABCMR Record of Proceedings (cont)                                         AR20090002863



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