IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100012223 


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 under honorable conditions discharge be upgraded to honorable and the removal of the reentry eligibility code.

2.  The applicant states:

* he never divulged [sic] or compromised his country, the Army, his unit, or his honor
* he never received a court-martial or an Article 15

3.  The applicant did not provide any additional documentary evidence in support of this application.

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 enlisted in the Regular Army on 17 July 1970.  He completed basic combat training; however, he was disqualified from attending advanced individual training for aircraft maintenance apprentice due to physical reasons.  He subsequently completed the military occupational specialty 16D (hawk missile crewman) advanced individual training.  The highest rank he attained while serving on active duty was private first class/E-3.

3.  On 8 September 1970, the applicant requested a reduction in his term of service due to the non-fulfillment of his enlistment commitment; the applicant states in effect:

* his enlistment contract was for aircraft maintenance apprentice training
* he was rejected from school due to his physical disqualification
* his enlistment commitment should be reduced to 24 months because of his physical disqualification

4.  On 5 November 1970, the applicant's request for reduction in his term of service was approved and his term of enlistment was reduced from 4 years to 2 years.

5.  On 24 August 1971, the applicant's unit commander initiated separation action under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability.  The basis for this recommendation was the applicant's habitual shirking from work and his continual refusal to recognize authority within his unit.  The applicant's records indicate:

* he was counseled seven times by the unit first sergeant for his poor performance, lack of interest, attitude, and poor military appearance
* he was counseled three times by the unit commander for his poor duty performance and appearance, and his belligerent attitude
* he was counseled three additional times by the unit commander concerning the facets and consequences of a discharge under less than honorable conditions

6.  The applicant's records show he consulted with legal counsel and waived consideration of his case by a board of officers.  He waived a personal appearance hearing and representation by counsel.  He did not submit a statement in his own behalf.

7.  On 7 September 1971, the appropriate authority approved the separation action and directed the issuance of a General Discharge Certificate.  On 16 September 1971, the applicant was discharged accordingly.  He completed 1 year and 2 months of creditable active service.

8.  On 13 January 1983, the Army Discharge Review Board (ADRB) acknowledged receipt of the applicant's application for review of his discharge.

9.  On 21 September 1984 after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant was properly and equitably discharged.  Therefore, his request for a change in his discharge was denied.

10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve. The regulation provides that prior to discharge or release from active duty; individuals will be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. RE-4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.
13.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded and that his reentry eligibility code should be removed were carefully considered; however, it was determined there is insufficient evidence to support this request.

2.  The applicant's records indicate he received numerous counselings for poor performance, lack of interest, bad attitude, and poor military appearance during his brief military service.

3.  The character of the discharge is commensurate with his overall record.  The type of discharge and reason were therefore appropriate considering all of the facts of the case.  Once discharge was approved, he was required to be given an RE code.  The RE code of 3 was appropriately given, and there is no basis on which to remove it.

4.  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.  Therefore, in view of the above, there is no basis to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.



      _________________________
                 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)                                         AR20100012223



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ABCMR Record of Proceedings (cont)                                         AR20100012223



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