IN THE CASE OF:	  

		BOARD DATE:	      6 AUGUST 2009

		DOCKET NUMBER:  AR20090005369 


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:

	a.  an upgrade of his general discharge under honorable conditions to a fully honorable discharge; 

	b.  in effect, correction of his separation code of "JHJ" and Narrative Reason for Separation "Unsatisfactory Performance"; and 

	c.  an upgrade of his Reenlistment Eligibility (RE) codes from "RE-3B and 
RE-3" to a more favorable code that may allow him to reenlist.

2.  The applicant states that he was an excellent Soldier during his military service but he made an immature and poor decision with respect to his personal life.  He adds that his superiors rushed him out of the Army without legal representation and/or an opportunity to reconcile his mistake.  He has since become a model citizen, earned a college degree, and currently holds a professional job.  He needs his discharge and/or codes upgraded so he may qualify for a civilian contractors job.  He believes that he has paid the price for his mistake.  His punishment was unjust and due to the length of time that has passed his records should be corrected.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 April 1986; a copy of a DA Form 2496 (Disposition Form), dated 18 March 1986, Subject: Recommendation for Elimination; a copy of his General Discharge Certificate, dated 24 April 1986; a copy of his Resume; a copy of his State Driver’s License; a copy of his Social Security Card; a copy of his Safety Training card; a copy of his Academic Transcripts; and a copy of his State Business License, in support of his request.

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's records show he enlisted in the Regular Army (RA) for a period of 3 years on 6 March 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty 57E (Laundry and Bath Specialist).  The highest rank/grade he attained during this period of military service was private first class (PFC)/E-3.

3.  The applicant's records also show he served in Germany from on or about 7 July 1984 to 5 March 1986.  His awards and decorations include the Expert Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Army Service Ribbon, and the Army Achievement Medal (1st Oak Leaf Cluster).

4.  On 19 September 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully distributing 2.5 grams, more or less, of hashish on or about 12 May 1985.  His punishment consisted of a reduction to private (PVT)/E-1, 45 days of extra duty, and a forfeiture of $310.00 pay for 2 months (the second month suspended).  He appealed his punishment on 19 September 1985; however, on 27 September 1985, the appeal was denied. 

5.  On 20 February 1986, the applicant pled guilty at a Summary Court-Martial for one specification of wrongfully using marijuana on or about 31 October 1985.  He also pled not guilty to one specification of wrongfully possessing marijuana on or about 27 November 1985.  The court found him guilty of both specifications and sentenced him to a forfeiture of $300.00 pay for 1 month and confinement at hard labor for 30 days.  The sentence was adjudged and approved on 20 February 1986.

6.  On 18 March 1986, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) by reason of unsatisfactory performance.  The immediate commander recommended a General Discharge Certificate.   

7.  On 18 March 1986, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel (emphasis added).  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him, and he declined to make a statement in his own behalf.  

8.  On 18 March 1986, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.  The immediate commander cited the applicant’s inability to develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier was evidenced by his previous incidents of indiscipline and/or misconduct.

9.  On 26 March 1986, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the applicant be furnished a General Discharge Certificate.  Accordingly, on 24 April 1986, the applicant was separated with a general discharge under honorable conditions.  He had completed a total of 2 years and 25 days of creditable military service and he had 23 days of lost time.  Item 26 (Separation Code) shows the entry "JHJ," item 27 (Reenlistment Code) shows the entries "RE-3B and RE-3," and item 28 (Narrative Reason for Separation) shows the entry "Unsatisfactory Performance."

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



11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 635-200 states, in pertinent part, 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the US Army Reserve.  Table 3-1 included a list of the RA RE codes.  An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.  An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  An RE-3B applies to Soldiers who have lost time and who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is also waivable. 

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code of "JHJ"  is the correct code to be assigned to Soldiers separating under chapter 13 of Army Regulation 635-200.  

15.  The SPD Code/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table, in effect at the time, shows the SPD code and a corresponding RE code.  The SPD code of "JHJ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded, that his SPD and RE codes should be upgraded and that his narrative reason for separation should be changed due to the passage of time and to allow him the opportunity to reenter the military and or improve job opportunities.  He also contends that he was denied due process.

2.  The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.  His administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The Army does not have a policy that provides for an upgrade of a discharge due to the passage of time or to permit entitlement to other benefits.  

4.  The applicant’s records show he was afforded an opportunity to consult with counsel and was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and of its effect on further enlistment or reenlistment, and of the procedures/rights that were available to him.

5.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant granting an upgrade of his discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him an upgrade of his discharge. 

6.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that the applicant was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  The underlying reason for his discharge was his unsatisfactory performance.  The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance."  Additionally, the appropriate separation code associated with this type of discharge is “JHJ.”


7.  The evidence of record further confirms the applicant’s RE code was assigned based on the fact that he was separated under the provisions of chapter 13 of Army Regulation 635-200, by reason of unsatisfactory performance.  The RE code associated with this type of discharge is RE-3.  Additionally, the applicant had 23 days of lost time due to being in confinement.  Therefore, the applicant received the appropriate RE codes of RE-3 and RE-3B associated with his discharge.

8.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the RE code is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief. 

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.



      _______ _   __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)                                         AR20090005369



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ABCMR Record of Proceedings (cont)                                         AR20090005369



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