IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012121 


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 items 26 (Separation Code), 27 (Reentry Code), and 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.  He also requests, in effect, that his general discharge be upgraded to honorable.  

2.  The applicant states that his opportunities to get a better job are limited and that if these items were changed it would improve his quality of life for his family.  He contends that he was thinking of joining the military again since they raised the age group to 41 and that he is more mature and very responsible.  He also indicates that he served in the U.S. Army Reserve (USAR), that he attained the rank of private first class, and that he was discharged with an honorable discharge.    

3.  The applicant provides an Honorable Discharge Certificate from the USAR and a copy of his DD Form 214 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 Regular Army on 23 September 1992 for a period of 4 years.  He trained as an administrative specialist.  

3.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 9 September 1994, shows the applicant received an Article 15 on 22 March 1994 (passenger in vehicle where open container was discovered).  His record of non-payment of just debts included a letter of indebtedness on 8 April 1994 and a counseling statement.  This certificate also shows the applicant received four counseling statements for failing to show for physical training formation, for being a passenger in back seat of vehicle stopped for having an open container, for being late for an appointment, and for not being in proper uniform for physical training.       

4.  On 26 September 1994, a bar to reenlistment was imposed against the applicant.

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows that on 24 April 1995 he was released from active duty under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200 for unsatisfactory performance.  He had served 2 years, 7 months, and 
2 days of creditable active service.  

6.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200 CHAP [Chapter] 13."  Item 26 on his DD Form 214 shows the entry "SPD [Separation Program Designator]: LHJ."  Item 27 on his DD Form 214 shows the entry "RE: 3."  Item 28 on his DD Form 214 shows the entry "UNSATISFACTORY PERFORMANCE." 

7.  On 12 April 2000, the applicant was honorably discharged from the USAR in the rank of private first class. 

8.  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.

9.  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, in effect at the time, stated the reason for discharge based on separation code "LHJ" is "Unsatisfactory Performance" and the regulatory authority is Army Regulation 635-200, chapter 13.

10.  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.

11.  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.

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

13.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 20 September 1993, shows that when the Separation Program Designator is "LHJ" then an RE code of 3 will be assigned.  

14.  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.





DISCUSSION AND CONCLUSIONS:

1.  The separation code, RE code, and narrative reason for separation used in the applicant’s case are correct and were applied in accordance with the applicable regulations.  

2.  A discharge is not changed for the purpose of enhancing employment opportunities.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request for an honorable discharge.
  
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)                                         AR20090012121





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ABCMR Record of Proceedings (cont)                                         AR20090012121



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