IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100011692 


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 his under other than honorable conditions (UOTHC) discharge to a general discharge (GD) under honorable conditions.  He also requests an upgrade of his reentry code (RE) code of 4 and his separation program designator (SPD) code of JKA.

2.  The applicant states that:

   a.  he was young and immature at the time he served in the military;

   b.  he was late for duty on various occasions, failed to check the duty roster and thereby missed a couple of weekend duties;

   c.  he accepted a discharge for misconduct to get out of the Army and to regain his freedom; and

   d.  he regrets this decision and seeks an upgrade of his discharge and RE code to gain employment with the Department of Veterans Affairs (VA).

3.  The applicant provides the following documents in support of his application:

* Self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)


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 record shows he enlisted in the Regular Army on      12 January 1976.  He completed his initial training and was awarded military occupational specialty 05E1O (Voice Radio Operator).

3.  His DA Form 2-1 shows the applicant was promoted to private (PV2)/E-2 on 12 May 1976, and this was the highest grade he attained while serving on active duty.  It also shows that he was reduced to the rank of private (PVT)/E-1 on        18 October 1977.

4.  The applicant’s military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following dates for the reasons indicated:

   a.  on 25 February 1976, for being asleep on duty; and

   b.  on 2 February 1977, for failing to go to his appointed place of duty at the time prescribed on 28 January 1977 and for leaving his appointed place of duty on 30 January 1977.

5.  On 3 October 1977, a special court-martial (SPCM) convicted the applicant of two specifications of violating Article 86 of the UCMJ for being absent from his place of duty on 13 August 1977 and for departing absent without leave (AWOL) from 16 August to 3 September 1977.  The resultant sentence included reduction to PV1, a forfeiture of $240.00 pay for 1 month, and confinement at hard labor for 30 days.


6.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to the him on 8 May 1978 showing he was discharged under the provisions of paragraph 14-33b(1), Army Regulation 635-200, and his service was characterized as UOTHC.  At the time of his discharge he had completed 2 years, 2 months, and 5 days of active military service and he accrued 53 days of time lost due to AWOL and confinement.  It also shows he was assigned an SPD of JKA and an RE code     of 4.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

8.  Paragraph 3-7b of the separations regulation provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  
An RE code of 4 applies to persons who are separated from their last period of service with a nonwaivable disqualification.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded and his RE code of 4 and SPD code of JKA should be corrected.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge appears to be commensurate with his overall record.

3.  The applicant's desire to obtain employment with the VA is not justification for an upgrading an appropriately-issued discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of her discharge.

5.  Absent evidence to confirm the applicant did not have a nonwaivable disqualification for reenlistment at the time of his discharge from active duty, the RE code of 4 is presumed to be correctly entered on his DD Form 214 in accordance with governing regulations.  There is no evidence of error or injustice.

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

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)                                         AR20100011692



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ABCMR Record of Proceedings (cont)                                         AR20100011692



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