IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017857 


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 correction of his narrative reason for separation, character of service, separation code, and reentry eligibility (RE) code to a more favorable reason or codes so he may reenter military service.

2.  The applicant states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) has an invalid RE code and separation code.  He was and is now a fit Soldier.  However, he was young at the time and he had too many family issues.  He made many mistakes just like anyone else.  But he is older and more mature now and realizes that he made bad decisions.  The military was the best choice he made.  He wishes to pursue a military career to better serve his country and provide a better life for himself and his family.  He regrets his previous mistakes and is asking for a change in his separation.  He knows he shouldn't get a second chance, but believes he would be a great asset to the military if given a chance.  He will work hard and strive to be the best Soldier he can be.  He has always wanted to be a part of the military and although he made mistakes, he learned from them.

3.  The applicant did not provide any additional documentary evidence 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 was born on 28 June1974 and enlisted in the Regular Army (RA) at 19 years of age for a period of 3 years 25 October 1993.  He was assigned to Fort Knox, KY, for completion of basic combat and advanced individual training in military occupational specialty 19D (Cavalry Scout).

3.  On 29 November 1993, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order on or about 24 November 1993.  His punishment consisted of a forfeiture of $376.00 pay, 14 days of restriction, and 14 days of extra duty.

4.  His records contain an extensive history of counseling by several members of his chain of command for various infractions including making racial remarks towards another Soldier, failing to secure his wall-locker, multiple instances of disobeying lawful orders, sleeping during class, failing the Army Physical Fitness Test, lack of discipline and motivation, failing to follow instructions, communicating a threat to bodily-harm himself, theft of government property, disrespecting his superior noncommissioned officers (NCOs), failing to maintain area to standards, conduct unbecoming of a Soldier, and destroying government property.

5.  On 27 January 1994, he again accepted NJP under the provisions of Article 15 of the UCMJ for assaulting another Soldier by striking at him with his fists on or about 24 January 1994 and disobeying a lawful order from a superior NCO on or about 24 January 1994.  His punishment consisted of 14 days of extra duty and 14 days of restriction.

6.  On 26 January 1994, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations), entry-level status performance and conduct.  The immediate commander remarked that his performance and conduct showed he could not adapt socially and emotionally to military life and he demonstrated a behavior not compatible with satisfactory military service.  He further recommended an entry-level separation with an uncharacterized service.

7.  On 26 January 1994, he acknowledged receipt of the separation notification in accordance with chapter 11 of Army Regulation 635-200.  He subsequently consulted with counsel and was advised of the reasons for separation and of the rights available to him.  He also acknowledged that he understood if the request for discharge was approved, he would receive an entry-level separation with uncharacterized service.  He further elected not to submit a statement on his own behalf.

8.  On 1 February 1994, his immediate commander initiated separation action against him in accordance with chapter 11 of Army Regulation 635-200.

9.  On 2 February 1994, the separation authority waived the rehabilitation requirements and approved the applicant's discharge from the Army under the provisions of chapter 11, Army Regulation 635-200.  Accordingly, he was discharged on 7 February 1994.  His DD Form 214 confirms he was discharged due to entry-level status performance and conduct in accordance with chapter 11, Army Regulation 635-200, with an uncharacterized character of service.  He completed 3 months and 13 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JGA" and item 28 (Reentry Code) shows the entry "3."

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of the regulation in effect at the time set policy and provided guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status.  It stated that when separation of a member in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter.  This separation policy applied to enlisted members of the Regular Army who have completed no more than 180 days active duty on current enlistment by the date of separation; have demonstrated that they cannot or will not adapt socially or emotionally to military life or cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; have demonstrated character and behavior characteristics not compatible with satisfactory continued service; or failed to respond to counseling.

11.  Chapter 3 of Army Regulation 635-200 describes the different types of characterization of service.  It provides that an uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For RA Soldiers, entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

12.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals are 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 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 terms of active service who are considered qualified to reenter the 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 the time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

13.  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.  Their primary purpose 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 "JGA" was the correct code for Soldiers separated under chapter 11 of Army Regulation       635-200.

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This table shows the SPD code and a corresponding RE code.  The table in effect at the time of his separation shows the SPD code of "JGA" had a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation, character of service, separation code, and RE code should be corrected.

2.  The evidence of record shows he was 19 years old at the time of his enlistment; however, there is no evidence that he was any less mature than other Soldiers who honorably completed their term of service.  Additionally, there is no evidence that his various instances of indiscipline were a result of his age.

3.  The evidence of record indicates his performance and conduct proved that he could not adapt socially and emotionally to military life and his demonstrated behavior was not compatible with satisfactory military service.  Accordingly, his immediate commander initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his military service at that time.

4.  By regulation, a separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status except when the characterization of under other than honorable condition is authorized or when the Secretary of the Army, on a case-by-case basis, determines that a honorable discharge is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

5.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and it is approved by the Secretary of the Army.

6.  The entry-level separation is given regardless of the reason for separation. This uncharacterized discharge is neither positive nor negative; it is not derogatory.  It simply means the Soldier did not serve long enough to qualify for a specified characterization of service.

7.  The evidence of record confirms his narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 11 of Army Regulation 635-200, entry-level status performance and conduct.  The underlying reason for his discharge was his unacceptable entry-level performance and conduct.  Absent his unacceptable performance and conduct, there was no fundamental reason to process him for separation.  The only valid narrative reason for separation permitted under this paragraph is "entry-level performance and conduct."  Additionally, the appropriate separation code associated with this type of discharge is JGA and the corresponding RE code associated with this type of discharge is RE-3.

8.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter or a career counselor who can best advise him on his eligibility for enlisting in the RA.

9.  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.  He failed to submit evidence that would satisfy that requirement.  Therefore, he 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.



      ____________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)                                         AR20090017857



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ABCMR Record of Proceedings (cont)                                         AR20090017857



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