IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090011644 


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 a fully honorable discharge, that the reason for his discharge be changed to reflect that he was discharged for the convenience of the government, and that his reentry eligibility (RE) code be changed to RE-1.

2.  The applicant states that the punishment he received was too severe and that his records of nonjudicial punishment (NJP) were for isolated and minor offenses.  He goes on to state that his ability to serve was impaired because he was not working in the field for which he was trained.  He continues to state that he was working as a clerk instead of as an infantryman and that his ability to serve was impaired because he had a son born out of wedlock which placed a financial burden on him.  He also states that he had not applied earlier because he is incarcerated.

3.  The applicant provides three hand-written pages explaining his application and a copy of his son's birth certificate.

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.  He was born on 13 August 1965 and enlisted in the Regular Army on 28 January 1986 for a period of 3 years and 14 weeks, training as an infantryman, and assignment to a Cohesive Operational Readiness Training regimental unit.

3.  He completed his one-station unit training as a light weapons infantryman, military occupational specialty (MOS) 11B1O, at Fort Benning, Georgia, and was transferred to Fort Drum, New York, on 14 May 1986 for duty as a light vehicle driver in MOS 11B1O.

4.  On 8 July 1986, a first lieutenant who was conducting an inventory of the barracks found the applicant in his room in bed with two females.

5.  On 14 July 1986, NJP was imposed against the applicant for being absent from his place of duty and having two unauthorized females in his barracks room.  He did not appeal his punishment.

6.  On 15 July 1986, he was counseled regarding the writing of three bad checks in the amount of $250.82.

7.  On 8 August 1986, he was counseled regarding missing formation on two occasions, not signing in while on extra duty, and cashing a bad check after being counseled for the same offense.

8.  On 15 August 1986, NJP was imposed against him for two specifications of failure to go to his place of duty.

9.  On 25 August 1986, the applicant was issued an identification card over-stamped with "no check cashing privileges."

10.  On 8 September 1986, 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 (Personnel Separations), paragraph 14-12c, for misconduct – commission of a serious offense.  He cited the applicant's failure to make good on his dishonored checks, his record of NJP, his repeated failure to make formations, and his lack of regard for military discipline as the bases for his recommendation.
11.  After consulting with counsel, the applicant exercised his rights and submitted a statement in his own behalf wherein he asserted that there was insufficient evidence to warrant his separation for a serious offense.  He continued to assert that it was not his fault that the checks were returned because someone had forged checks in the amount of $90.00 that caused his checks to be returned.  He also asserted that he paid the checks when he could, that he did not engage in a serious offense, and that his performance did not warrant or support the issuance of a general discharge.  He requested that as a minimum he receive an honorable discharge.

12.  The applicant's commander initiated action to discharge him on 17 September 1986 and requested that a rehabilitative transfer be waived because the applicant would not change and would be a problem to any unit to which he was transferred.  The recommendation was reviewed by the Staff Judge Advocate and was found to be legally sufficient.

13.  The appropriate authority approved the recommendation for discharge on 26 September 1986 and directed that he be furnished a General Discharge Certificate.

14.  Accordingly, the applicant was discharged under honorable conditions on 3 October 1986 under the provisions of Army Regulation 635-200, paragraph 
14-12c, for misconduct – commission of a serious offense.  He had served 8 months and 6 days of total active service.  He was issued a separation code of "JKQ" which reflects the separation authority and narrative reason for separation and a RE code of "3."

15.  There is no evidence to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  The applicant is currently incarcerated by the Virginia Department of Corrections.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although an honorable or general is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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

18.  Army Regulation 635-200, paragraph 3-7b, 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.

19.  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 (Active and Reserve Components Enlistment Program) 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.

20.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  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 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question and his separation code and RE code appropriately reflect the reason for his discharge.

3.  While the applicant's contentions have been noted, they are not sufficiently mitigating to warrant an upgrade of his discharge to fully honorable given his repeated misconduct during such a short period of service.

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)                                         AR20090011644



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ABCMR Record of Proceedings (cont)                                         AR20090011644



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