IN THE CASE OF:	  

		BOARD DATE: 	        16 June 2009

		DOCKET NUMBER:  AR20090004063 


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 he be issued a more favorable Reenlistment (RE) Code and Narrative Reason for Separation. 

2.  The applicant states, in effect, that he was hired by the Department of Veterans Affairs (VA) Hospital but lost his job after 7 months because he was not "status-eligible".  He goes on to state that he enlisted at the age of 16 with his guardian's consent long before he departed for basic training and his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect this information.

3.  The applicant provides a hand-written letter explaining 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 5 October 1962 and he enlisted in the United States Army Reserve on 23 February 1980, at age 17, for a period of 6 years under the delayed entry program (DEP).

3.  He enlisted in the Regular Army on 4 March 1980 for a period of 3 years, training as a chemical operations specialist and assignment to Europe for 18 months.  He was transferred to Fort McClellan, Alabama to undergo his basic training.

4.  The facts and circumstances surrounding the applicant's administrative separation are not present in the available records; however, the records do contain a duly constituted DD Form 214 signed by the applicant which shows that he was honorably discharged on 1 May 1980 under the provisions of Army Regulation 635-200, paragraph 5-33f(2), due to marginal or non-productive performance.  He had served 1 month and 28 days of total active service and 11 days of inactive service (time spent in the DEP).  He was assigned an RE Code of "3" based on his separation code of "JET" (Marginal or Non-Productive Performance under the Trainee Discharge Program).

5.  Army Regulation 635-200, paragraph 5-33, in effect at the time, provided the criteria for the separation of personnel under the Trainee Discharge Program (TDP) who lacked the necessary motivation, discipline, ability, or aptitude to become a productive Soldier.  It states, in pertinent part, that commanders may expeditiously discharge members of the Regular Army, Army National Guard or United States Army Reserve who have completed 179 days or less of active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Commanders were authorized to issue either an Honorable or General Discharge and the separation code for discharge under the TDP was "JET."  The appropriate RE Code to be assigned to individuals discharged with a separation code of "JET" is a "3."  Under today's standards, individuals discharged with less than 180 days of active duty service will receive a discharge with "UNCHARACTERIZED" service. 

6.  An 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.  Waivers are normally contingent on the needs of the Service at the time of application and the circumstances surrounding the individual’s separation from the service.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights. 

2.  Likewise, it must also be presumed that the type of discharge directed and the narrative reason therefore were appropriate under the circumstances and the applicant has failed to show otherwise.  Based on the available evidence both the applicant’s RE code and his narrative reason for discharge are correct.

3.  The applicant's contentions have been considered; however, the fact that the applicant would like to improve his employment prospects or obtain employment with the VA does not serve as a basis sufficient to correct a duly constituted and correctly issued discharge.  Additionally, the VA administers its programs under its own regulations and policies.  

4.  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

__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)                                         AR20090004063



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ABCMR Record of Proceedings (cont)                                         AR20090004063



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