BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021929 


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 separation code.

2.  The applicant states that he excelled in training as an enlisted member and as a warrant officer.  After his marriage, he was reassigned to Germany and departed without his wife to acquire a suitable residence.  Shortly after his arrival, he was informed that his wife was missing.  He was granted leave to help locate her.  It was later determined that she had been kidnapped and raped.  As his leave neared its end, he reported in at Fort Polk, LA, despite his unit commander's earlier instruction not to seek attachment.  Nevertheless, his wife was not in a safe condition at the time and his decisions were based on the love of his wife.  Weeks later, he found a note from his wife stating that she had gone to another State.  He obtained permission from his Fort Polk supervisor and went to that state looking for her.  As he was unfamiliar with the place where she was located, it took him time to locate her.  He ultimately missed the next duty day's formation and he was reported in an absent without leave (AWOL) status.  This was followed by a recommendation for elimination from the Army and ultimately a request for voluntary resignation in lieu of elimination.  He received his honorable discharge but he needs his separation code to be relooked for accuracy.  He would like to reenter the military; however, he is encountering difficulties in that regard.

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.  Having had prior enlisted service, the applicant's records show he was appointed as a warrant officer (WO) and he executed a DA Form 71 (Oath of Office - Military Personnel) on 23 August 1988.  He subsequently completed the UH-60 Aviation Qualification Course and he was assigned to the 4th Squadron, 2nd Armored Cavalry Regiment in Germany.

3.  On 3 January 1989, he was attached to the 5th Replacement Detachment at Fort Polk and he was working at the 36th Medical Detachment.

4.  On 20 March 1989, he was reported AWOL from his Fort Polk unit.  He then returned to military control on 26 March 1989.

5.  On 26 April 1989, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 20 March 1989 to on or about 26 March 1989.  His punishment consisted of a written reprimand; forfeiture of pay for two month, of which a portion was suspended for six months; and restriction for 30 days.

6.  On 26 April 1989, he received a General Officer Memorandum of Reprimand (GOMOR) for failing to report for duty when he called his attached unit on
24 March 1989 and was directed to return immediately and for his flagrant disregard of military discipline.

7.  On 31 May 1989, by memorandum, the Commanding General (CG), 5th Infantry Division, Fort Polk, notified the applicant that he was required to show cause for retention on active duty because of his substandard performance of duty, apathy, defective attitudes, and character disorders to include inability or unwillingness to expend effort.  Specifically, the CG cited his AWOL from 20 March 1989 to 26 March 1989, failure to report on 17 and 18 April 1989, and dishonored check.  He recommended an honorable discharge.

8.  On 6 June 1989, he acknowledged receipt of the notification memorandum and elected to resign in lieu of elimination from the service.  He further elected not to submit a statement in his own behalf.

9.  On 6 June 1989, by memorandum, he requested voluntary resignation from the Army under the provisions of Army Regulation 635-120 (Personnel Separations - Officer Resignations and Discharges), chapter 4, resignation in lieu of elimination.  He further waived his right to appear before a board of officers or to submit matters in explanation, rebuttal, or defense of the allegations in his case.

10.  On 6 and 15 June 1989, his immediate, intermediate, and senior commanders recommended approval of his discharge.

11.  On 18 July 1989, by message, Headquarters, Department of the Army, approved his request for voluntary resignation and directed his service be characterized as honorable.  The message further directed his Separation Program Designator (SPD) code would be "BHK."

12.  Accordingly, he was honorably discharged on 18 August 1989.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-120, chapter 4, by reason of substandard performance of duty with an honorable character of service.  He completed 11 months and 26 days of creditable active service during this period of service.  Item 26 (Separation Code) shows the entry "BHK."

13.  Army Regulation 635-120, in effect at the time, implemented the statutory provisions of Title 10, U. S. Code governing officer separations.  It provided the policies and procedures for separating officers from active duty.  Chapter 4 provided procedures to eliminate officers from the Army for substandard performance of duty.  It states that officers whose performance of duty which has fallen below standards prescribed by the Secretary of the Army may be separated.  The existence of apathy, defective attitudes, or other character disorders to include inability or unwillingness to expend effort, unless successfully rebutted, authorizes elimination of an officer due to substandard performance of duty.  Commanders will ensure that there is no element of coercion in connection with a resignation in lieu of elimination.  An Honorable Discharge Certificate will be issued when an officer's discharge is based solely on substandard performance of duty.


14.  Army Regulation 635-5-1 (SPD), in effect at the time, states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of, separation from active duty.  The "BHK" SPD code is the correct code for officers separating under the provisions of Army Regulation 635-120, chapter 4, by reason of resignation - in lieu of elimination proceedings due to substandard performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his SPD code should be reevaluated for accuracy so he may reenter military service.

2.  The evidence of record confirms the applicant’s SPD code was assigned based on his discharged under the provisions of Army Regulation 635-120, chapter 4, by reason of substandard performance.

3.  Absent his substandard performance (AWOL, failure to report, and dishonored check), there was no fundamental reason to process the applicant for elimination from the Army or for him to request resignation in lieu of elimination.  The underlying reason for his discharge was his substandard performance.  The only valid narrative reason for separation permitted under that paragraph is "Substandard performance of duty" and the appropriate SPD code associated with this discharge is "BHK."

4.  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 who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and are responsible for processing any enlistment waivers, as necessary.

5.  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, he is not entitled to the requested relief.

6.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20090021929



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ABCMR Record of Proceedings (cont)                                         AR20090021929



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