IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017618 


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 an upgrade of her discharge and an upgrade of her reenlistment eligibility (RE) code from an RE-3 to an RE-1.

2.  The applicant states that she desires to reenter the military.  She states she has provided 23 years of faithful employment in customer service to include service in the United Way and she believes everyone deserves a second chance in life to serve their country. 

3.  The applicant did not provide any additional documentary evidence in support of her 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 she enlisted in the Regular Army (RA) on 10 July 1986 and held military occupational specialty 75D (Personnel Records Specialist).  The highest rank/grade she attained during her military service was private first class/E-3.  She was assigned to Fort Riley, KS. 

3.  Her records also show she was awarded the Army Service Ribbon.

4.  On 22 February 1988, she accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving her appointed place of duty without authority on or about 8 February 1988.  Her punishment consisted of 14 days of restriction and 14 days of extra duty.

5.  Her records also show that during the period from June through September 1988, she was frequently counseled by several members of her chain of command for various infractions including writing bad checks, a negative attitude, continuously being absent from her work area, being argumentative and disrespectful, and bypassing her chain of command.

6.  On 27 September 1988, she was disenrolled from the Military Instruction Course (MIC) for misconduct and unsatisfactory performance.  She had a male Soldier hiding in the wall locker of her barracks room in violation of company policy.

7.  On 9 November 1988, she again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order by failing to properly store her M16A1 Rifle.  Her punishment consisted of a reduction to private/E-1, 14 days of extra duty, and a forfeiture of $335.00 pay for 2 months (suspended until 
1 February 1989).

8.  On 28 December 1988, the immediate commander notified applicant of his intent to initiate separation action against her in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations) due to unsatisfactory performance with a general discharge.  He cited the applicant's NJP's, release from the MIC, and failure to pay just debts as the bases for the recommendation. 

9.  On 29 December 1989, she acknowledged receipt of the commander's notification and she subsequently consulted with legal counsel.  She was advised of the bases for the contemplated separation action for unsatisfactory performance, the type of discharge she 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 her.  She waived consideration of her case by a board of officers, and a personal appearance before a board of officers.  She elected to submit a statement on her own behalf.  In her statement, she highlighted her achievements, contributions, and love of the Army. 

10.  She further acknowledged that she understood she might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she might be ineligible for many or all benefits as a veteran under both Federal and State laws.

11.  Her immediate commander initiated separation action against her in accordance with Army Regulation 635-200 by reason of unsatisfactory performance with a general discharge under honorable conditions.  He remarked that she had no genuine respect for authority and showed no potential for successful service.

12.  On 5 January 1989, her intermediate commander recommended approval of the proposed elimination action with a general discharge.

13.  On 12 January 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance with the issuance of a general discharge under honorable conditions.  Accordingly, she was discharged on 25 January 1989.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 2 years, 6 months, and 16 days creditable active service.  Item 26 (Separation Code) shows the entry "JHJ" and item 27 (Reenlistment Code) shows the entry "RE-3."

14.  On 16 October 1992, the Army Discharge Review Board denied the applicant’s request for an upgrade of her discharge.

15.  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.  A general or honorable discharge was considered appropriate.

16.  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.
17.  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 U.S. Army Reserve.  Table 3-1 includes 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.

18.  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.

19.  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 of "JHJ" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge and RE code should be upgraded.

2.  The available evidence shows her duty performance was tarnished by two instances of NJP, her disenrollment from training, and a history of negative counseling.  Accordingly, her chain of command initiated separation action against her.  The evidence further shows her separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized her rights.  The applicant's general discharge is commensurate with her overall record of military service.

3.  The applicant's 23 years of faithful employment in customer service to include the service in the United Way and her argument that everyone deserves a second chance in life was considered.  However, they are not sufficiently mitigating to grant the requested relief. 

4.  The evidence of record confirms the narrative reason for separation was assigned based on the fact that she was discharged under the provisions of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.  The underlying reason for her discharge was her unsatisfactory performance.  The only valid narrative reason for separation permitted under this paragraph is "unsatisfactory performance."  The appropriate SPD code associated with this type of discharge is "JHJ" and the appropriate RE code associated with this type of discharge is "RE-3."

5.  The ABCMR does not correct records solely for the purpose of establishing entitlements to other programs or benefits.  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.  She did not submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION
________  ________  ________  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)                                         AR20090017618



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ABCMR Record of Proceedings (cont)                                         AR20090017618



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