IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100001024 


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, in effect, correction to items 4a (Grade, Rate or Rank), 4b (Pay Grade), 7 (Last Duty Assignment and Major Command),
13 (Decorations, Medals, Ribbons, Badges, Citations, and Campaign Ribbons Awarded or Authorized), 21 (Signature of Member Being Separated),
24 (Character of Service), 25 (Separation Authority), 26 (Separation Code),
27 (Reenlistment Code (RE)), 28 (Narrative Reason for Separation), and
30 (Member Requests Copy 4) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he believes his DD Form 214 is in error because his last duty assignment was with the 34th Transportation Company, 29th Battalion, 101st Airborne Division; not the 34th Transportation Battalion.  He also states, in effect, item 13 of his DD Form 214 should show the Sharpshooter, not the Marksman, Marksmanship Qualification Badge with Rifle Bar.

3.  The applicant further states his chapter 13 separation was due to a discrepancy because he was under a doctor’s physical profile not to participate in physical training (PT) due to an ankle injury.  Following his doctor’s physical profile he did not attend PT.  Because of this reason, he was ordered to report to his company commander to answer for his absence.  He was told he was first supposed to report to PT and then turn in the profile.  He was ordered to be confined to the barracks for two weeks.  He is asking to be forgiven for a small infraction due to a physical profile discrepancy during a peace time Army.

4.  The applicant also states after reporting to his company commander, he was issued a chapter 13 and a general discharge, and then he was transferred to the Individual Ready Reserve (IRR).  He was told he could enlist in the Regular Army (RA) after three years.  Three years later, he tried to reenter the Army and they refused him because of his RE Code 3.  He decided to reenlist in the IRR for a second term.  At the end of his six years of IRR status he received an honorable discharge with no DD Form 214 to show for it.  He is interested in joining the Florida Army National Guard (FLARNG).

5.  The applicant provides copies of his DD Form 214 for the period ending
9 August 1985; DD Form 215 (Correction to DD Form 214), dated 11 October 1985; and his Honorable Discharge 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.  The applicant’s military records show he enlisted in the U.S. Army Reserve (USA) Delayed Entry Program (DEP) on 22 July 1983.  He was discharged from the USAR DEP on 27 November 1983 and he enlisted in the RA in pay grade
E-1 on 28 November 1983.  He completed training and he was awarded military occupational specialty (MOS) 64C (Vehicle Driver).  He was advanced to pay grade E-3 on 28 November 1984, the highest grade he held during his period of active service.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 11 and 27 March 1985, for disobeying a lawful order on 8 March 1985 and misappropriation of government property (lost M-16A1 rifle) on 27 March 1985.

4.  On 21 June 1985, the applicant accepted NJP Article 15, UCMJ, for failing to go at the time prescribed to his appointed place duty on 10 June 1985.  His punishment included a reduction to pay grade E-2, forfeiture, and extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-2, effective
21 June 1985.

5.  On 16 July 1985, the applicant’s company commander, 34th Transportation Company, 101st Airborne Division, notified him of his intention to separated him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13, for unsatisfactory performance. The company commander stated the recommendation was based on the applicant's continued display of patterns of misconduct and having been afforded the opportunity to redeem himself.  He was not reliable and hindered the performance of a good unit.  He would never adapt to the military and become a good Soldier regardless of the Army’s efforts.

6.  On 25 July 1985, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He acknowledged that he had less than 6 years of total active service and was therefore not entitled to have his case heard by an administrative separation board.  He also acknowledged that he understood that he might be issued a general, under honorable conditions discharge and that he was ineligible to apply for enlistment in the Army for a period of 2 years after discharge.  He elected to submit a statement in his own behalf.

7.  In his statement, the applicant stated he regretted not being able to finish something he started.  MOS 64C was not the MOS of his choice.  He had set goals for himself in Army aviation, but failed to complete them.  He feels it was a lack of discipline on his part.  In his 18 months of service he had increased his self-discipline, but not to the extent required of him.  He also stated the company commander, in effect, had to make unpleasant decisions for the good of the unit and he would stand by the commander’s decision concerning him.

8.  On 1 August 1985, the appropriate authority approved the applicant's discharge with issuance of a General Discharge Certificate.

9.  The applicant was released from active duty in pay grade E-2 on 9 August 1985, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He was transferred to the IRR.  He received a character of service of general, under honorable conditions.  He was credited with 1 year, 8 months, and 12 days of net active service.

10.  Item 7 of his DD Form 214 shows the applicant’s last duty assignment and major command was FORSCOM (Forces Command), 34th Transportation 
Battalion, 101st Airborne Division.  Item 13 of his DD Form 214 lists his awards as the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Item 26 (Separation Code) shows "LHJ," and Item 27 shows "RE-3, 3-C."

11.  The applicant’s DA Form 2-1 (Personnel Qualification Record), Item 41 (Awards and Decorations), shows that based on award of 35 points he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

12.  On 11 October 1985, he was issued a DD Form 215 correcting his DD Form 214 to show he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 9 August 1985.  He was honorably discharged from the USAR on 25 June 1992 and he was issued an Honorable Discharge Certificate.

13.  On 17 February 1988, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

14.  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.

15.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 was a summary of a Soldier's most recent period of continuous service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The edition of Army Regulation 635-5 in effect on the date of the applicant's separation specified:

   a.  for items 4a and 4b, enter the active duty grade of rank and pay grade at the time of separation;
   
b.  for item 7, enter the last unit of assignment and the major command or agency having jurisdiction over that organization;

   c.  for item 13, enter all decorations, medals, badges, citations and campaign ribbons awarded or authorized for all periods of service;
   
	d.  for item 21, signature of member must be legible on all copies.  A second signature may be needed on copy 4.  Use payroll signature when signing the form;

	e.  for item 24, enter the type of discharge issued.  Authorized entries are:

* Honorable
* Under Honorable Conditions (General)
* Under Other Than Honorable Conditions
* Bad Conduct
* Dishonorable
* To be determined (see para 1–5b, Army Regulation 635-100 (Personnel Separations - Officer Personnel).
* Not applicable (for release from custody and control of the Army due to void or voided enlistments);

   f.  for item 25, enter the regulatory or statutory authority authorizing separation;

   g.  for item 26, enter the proper separation program designator (SPD) code representing the reason for separation (Army "Regulation 635-5-1 (SPD Codes);

	h.  for item 27, enter the appropriate RE code referenced in Army Regulation 601-210 (Active and Reserve Components Enlistment Program);

   i.  for item 28, enter the reason for separation (shown in Army Regulation 635-5-1) based on the regulatory or statutory authority; and

   j.  for item 30, have the members initial in this item if they desire copy 4 of
DD Form 214.

16.  Army Regulation 601-210, then in effect, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including RA RE codes.

* RE-3 applied to persons who are not qualified for continued Army service, but the disqualification is waivable

* RE-3C applied to persons who have completed over 4 months of service who do not meet the basic eligibility pay-grade requirements of Army Regulation 601-280 (Army Reenlistment Program), chapter 2, or who have been denied reenlistment under the Qualitative Retention: Process under Army Regulation 600-200 (Enlisted Personnel Management System), chapter 4.  Ineligible for enlistment unless a waiver is granted.

17.  Army Regulation 635-5-1, then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation showed the SPD of "LHJ” was appropriate when the narrative reason for involuntary discharge was “Unsatisfactory Performances” and the authority for discharge is Army Regulation 635-200, chapter 13.

18.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The SPD code of "LHJ" has a corresponding RE code of "3."  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should show his last duty assignment was with the 34th Transportation Company.  Item 7 of his DD Form 214 shows his last duty assignment was the 34th Transportation Battalion.  The evidence of record shows he was assigned to the 34th Transportation Company at the time of release from active duty on 9 August 1985.  Based on this evidence and in accordance with regulatory guidance, he is entitled to a correction of his DD Form 214 to show his last duty assignment as the 34th Transportation Company.

2.  The evidence also confirms that the applicant was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16); however, the Marksman Marksmanship Qualification Bar with Rifle Bar (M-16) was entered in item 13 of his DD Form 214.  Therefore, he is entitled to a correction of his DD Form 214 show the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

3.  The evidence of record shows the applicant was reduced to pay grade E-2 on 21 June 1985 as a result of punishment under Article 15, UCMJ.  There is no evidence he was advanced to a higher grade prior to his release from active duty 
on 9 August 1985.  His rank and pay grade at the time of his discharge was properly entered in items 4a and 4b of his DD Form 214.  He placed his signature in item 21 and his initials in item 30 of his DD Form 214, indicating his request for copy 4 of his DD Form 214.  In view of the foregoing, there is no basis for granting his request for correction to Items 4a, 4b, 21, and 30 of his DD Form 214.

4.  The applicant's contentions that Items 24, 25, 26, and 27 of his DD Form 214 should be corrected have also been noted; however, his records show he was punished under Article 15, UCMJ, on three occasions.  His company commander stated his continued patterns of misconduct, after being afforded the opportunity to redeem himself, led him to recommend the applicant’s separation from the Army.  He was advised he could be issued a general discharge and he would not be allowed to reenlist until 2 years after his date of separation.  He was released from active duty on 9 August 1985 and he was transferred to the IRR.

5.  Contrary to the applicant’s contention that he was unjustly discharged under Army Regulation 635-200, chapter 13, with a general discharge, he was advised by legal counsel and he acknowledged, in writing, the reason for his separation.  Therefore, the evidence clearly shows he understood the reason for his discharge and the type of discharge that he would be receiving.

6.  The applicant also has provided no evidence to show that his discharge was unfair or unjust.  The evidence of record confirms his release from active duty was accomplished in accordance with applicable regulations and the characterization of his service and the reasons therefore were appropriate, considering all the facts of the case.

7.  The evidence of record further shows he was issued an SPD code of "LHJ” that has a corresponding RE code of "3."  The RE codes applied to the applicant's DD Form 214 are commensurate with and correspond to the reason for his discharge.  There is no evidence his separation which resulted in him receiving an RE code of "3" and "3C" was unjust.

8.  The documentation submitted by the applicant in support of his request was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of his request for correction to Items 24, 25, 26, and 27 of his DD Form 214. 

9.  The applicant wishes to enlist in the FLARNG.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  His RE codes of "3 and 3C" are waivable; therefore, he 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 RE code waivers.

10.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 7 of his DD Form 214 the entry "34th Trans Bn, 101st Abn Div (Asslt), FORSCOM FC" and replacing it with the entry "34th Trans Co, 101st Abn Div (Asslt), FORSCOM FC";

   b.  deleting from item 13 of his DD Form 214 the entry "Marksman Badge 
M-16 Rifle" and replacing it with the entry "Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16); and
   
   c.  providing him a correction to his DD Form 214 that includes these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to correcting items 4a, 4b, 21, 24, 25, 26, 27, 28, and 30 of his DD Form 214.



      ___________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)                                         AR20100001024



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ABCMR Record of Proceedings (cont)                                         AR20100001024



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