IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011792 


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 his general discharge be upgraded to an honorable discharge and his Reentry code of RE-3 be corrected to an RE-1.

2.  The applicant states he was 19 years old and very immature.  While his actions were inexcusable, with proper discipline and counseling he would have been put back on the proper path and would have completed his enlistment.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two recommendations for employment - - one from a retired first sergeant and Medal of Honor recipient, and the other from a retired chief petty officer.  These recommendations detail the applicant's talents and work ethic.

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 that he enlisted in the Regular Army on 10 October 1989 and was awarded the military occupational specialty of multichannel communications system operator.

3.  On 9 October 1990, the applicant's battalion commander offered him nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order (two specifications, one for not assuming the front leaning rest position and the other for not stopping to do his push-ups correctly and then assume the position of parade rest), for being disrespectful in language to a superior noncommissioned officer (two specifications, one for telling a noncommissioned officer "No, I'm not going to . . . you can take this dam [sic] uniform" and taking off his shirt and throwing it on the ground, and the second for telling a noncommissioned officer "F---- this s---, I'm not doing it"), and for stealing a leather jacket of a value of about $115.00, property of the Army and Air Force Exchange Service.  The applicant had been counseled in writing about his misconduct.

4.  The applicant submitted a 2 1/2 page statement to his battalion commander explaining the circumstances which led to his misconduct.  Essentially, while the applicant admitted guilt, he was providing matters of mitigation.

5.  The applicant's commander notified the applicant of his intention to recommend his discharge due to misconduct – minor disciplinary infractions, and of his rights in conjunction with that recommendation.  The applicant consulted with legal counsel but did not submit any statement in his own behalf.

6.  The applicant's commander's recommendation was approved by the appropriate authority and he was given a general discharge on 22 January 1991 for a pattern of misconduct.  He was 19 days from turning 20 years old at that time.

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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.   When discharge is ordered under this authority, an under other than honorable conditions (UOTHC) discharge is considered appropriate.
8.  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.

9.  Army Regulation 601-210, table 3-6, lists the various RE codes and describes the reason(s) a Soldier is assigned a particular code.  The code of RE-1 is assigned to individuals who complete an initial term of active service and who were fully qualified to reenlist when last separated.  The code of RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

10.  The SPD/RE Code Table directs that the SPD "JKM" be assigned the RE code "RE-3."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was almost 20 years old at the time of his discharge.  He was no younger than other Soldiers who honorably completed their enlistments.  As such, his age is not considered a mitigating factor in this case.

2.  The only disciplinary problems recorded are the infractions for which he accepted NJP.  However, this NJP was for five serious offenses.  The nature of the offenses showed that the applicant was a disciplinary problem and could adversely affect the discipline and good order of the unit.

3.  Therefore, it is certainly understandable why the applicant's unit commander initiated action to discharge the applicant.

4.  The applicant's contention that he would have been put back on track if he had been counseled and disciplined is noted.  However, in a military environment where Soldiers live in close proximity to each other, a disruptive influence must be quickly terminated.  The applicant's commander obviously determined that the applicant either indicated he would not change or that too much damage to unit morale and cohesiveness would occur in the time it took to get him to comply with military order and discipline.

5.  Soldiers discharged for misconduct are normally given a UOTHC discharge.  The fact that the applicant was given a general discharge shows that his command afforded him leniency in the discharge process.
6.  The applicant's post-service accomplishments are commendable.  However, they are insufficient to warrant upgrading a properly issued discharge.

7.  Since the reason for the applicant's discharge is not being changed, there is no basis for changing his RE code.

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)                                         AR20100011792





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ABCMR Record of Proceedings (cont)                                         AR20100011792



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