IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015295 


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 a discharge upgrade to honorable, an upgraded reentry to her (RE) code, and award of the Army Service Ribbon and Overseas Service Ribbon. 

2.  The applicant states, in effect, that she is a member in good standing with the State of Florida, Army National Guard (FLARNG).  She states she has grown and matured during the past 13 years and is currently a productive member of the Armed Forces.  She has completed noncommissioned officer professional development courses and she is currently serving in support of Operation Iraqi Freedom.  

3.  The applicant provides the following documentary evidence in support of her application:

	a.  her DD Form 214 for the period ending on 5 June 1980;

	b.  DD Form 4/1-4 (Enlistment/Reenlistment Document, Armed Forces of the United States) with related enlistment documents, dated 28 September 1996;

   c.  DA Form 1059 (Service School Academic Evaluation Report) for the Human Resources Specialist 42A40 Noncommissioned Officer (NCO) Course Phase I with a course ending date of 2 August 2009;

	d.  DA Form 1059 for the Human Resources Specialist 42A40 NCO Course Phase II ending on 16 August 2008;
	e.  ARNG Current Annual Statement prepared on 18 August 2009;

	f.  Orders 109-424 issued by FLARNG on 25 November 2009; and

	g.  Orders HO-029-0010 issued by Headquarters, III Corps and Fort Hood on 29 January 2010.

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 enlisted in the Regular Army on 18 July 1979.  She completed her initial entry training and was awarded military occupational specialty 31M (Multichannel Communications Operator).  

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order of a superior commissioned officer and noncommissioned officer (NCO) and for failure to go.  Her disciplinary history shows she was counseled on numerous occasions for failing to comply with verbal instructions of superior NCOs, not conforming to acceptable standards of military conduct, being disrespectful towards her chain of command, leaving her appointed place of duty without authority, failure to go and failure to obey direct orders.  She was advised she could be separated with a less than honorable discharge or subject to additional punishment if her misconduct continued.  

4.  On 30 April 1980, the applicant's commander notified her that he was initiating action to discharge her from the Army under the provisions of the Expeditious Discharge Program and that he was recommending she receive a general discharge.

5.  The applicant's commander stated she had a poor attitude, exhibited disruptive actions, lacked self-control, lacked self-discipline and demonstrated an inability to adapt socially and emotionally to the military service.  In short, she had demonstrated totally unacceptable behavior for a Soldier in the U.S. Army.  The commander stated she failed to demonstrate promotion potential and that she had been personally counseled on two occasions and received one NJP.

6.  The commander advised her she had the right to decline this discharge.  However, if she declined and her subsequent conduct indicated such action was warranted, she might be subject to disciplinary or administrative separation procedures under other provisions of law or regulations.  She was advised that there is neither automatic upgrading nor review by any government agency of a characterization of service which is under honorable conditions.  She was told she could apply to the Army Discharge Review Board or Army Board for Correction of Military Records.  The applicant was also told she had a right to submit a statement in her behalf.

7.  On 2 May 1980, the applicant acknowledged notification of her proposed discharge, voluntarily consented to be discharged, and waived her right to submit a statement.  She acknowledged that she had been provided the opportunity to consult with an officer of the Judge Advocate General’s Corps and that she did obtain legal counsel.

8.  On 12 May 1980, the applicant's commander recommended she be discharged under the Expeditious Discharge Program and that she be given a General Discharge Certificate.

9.  On 16 May 1980, the appropriate authority approved the applicant's expeditious discharge and directed that she be furnished a General Discharge Certificate.

10.  On 5 June 1980, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200 (Personnel Separations).  She was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing she had completed 10 months and 18 days of active service that was characterized as under honorable conditions.  Item 26 (Separation Code) shows the entry "JGH" and item 27 (Reenlistment Code) shows the entry "RE-3, 3C."

11.  With an enlistment waiver granted by the FLARNG on 26 September 1996, she enlisted in the FLARNG for a 4-year period of service in the grade of private/pay grade E-1 on 28 September 1996.  A review of her ARNG annual retirement statement shows she has continuously served as an active member of the ARNG in a troop program unit earning 12 years of creditable service for non-regular retirement as of 19 August 2009.  She currently is a staff sergeant in pay grade E-6.  She completed her NCO courses for MOS 42A and is currently mobilized in support of Operation Iraqi Freedom.

12.  There is no evidence to show she applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  References:

   a.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel.  Chapter 5 provides that members who had completed at least 6 months but less than 36 months of continuous active service during their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel due to poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.

   b.  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.

   c.  Army Regulation 635-200 states 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.
   
   d.  Army Regulation 601-210 (Army Reenlistment Program), dated 1 July 1977, covers eligibility criteria, policies, and procedures for enlistment and processing personnel into the Regular Army, U.S. Army Reserve, and Army National Guard.  RE codes are used for administrative purposes and are not to be considered derogatory in nature.  Simply, RE codes are used for identification of an enlistment processing procedure.

		(1)  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  RE-3 applies to Soldiers who are not eligible for reenlistment unless a waiver is granted and it includes Soldiers separated under the Trainee Discharge Program or the Expeditious Discharge Program.

		(3)  RE-3C applies to Soldiers who are not eligible for reenlistment unless waiver consideration is permissible and is granted.  This code is applicable only to persons who do not meet the grade requirement in basic eligibility criteria. 

	e.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214.  It states that SPD code "JGH" is the appropriate code to assign to Soldiers who are separated under the provisions of the Expeditious Discharge Program.

	f.  Army Regulation 600-8-22 (Military Awards) states the Army Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award upon successful completion of initial entry training.  The award may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.

	g.  Army Regulation 600-8-22 (Military Awards) states the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was not on active duty during a period of eligibility for the Overseas Service Ribbon or the Army Service Ribbon.  Therefore, she is not entitled to these two awards.

2.  The Board acknowledges the applicant's service in the FLARNG and her attainment of the rank of staff sergeant.  However, she was properly and equitably discharged from the Regular Army in accordance with regulations in effect at the time.  The applicant’s commander notified her of the reasons and the type of discharge he was recommending.  She voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of this case.  The records contain no indication of procedural or other errors that would tend to jeopardize her rights.

3.  The applicant's RE code was assigned because she was separated under the provisions of Army Regulation 635-200, chapter 5, Expeditious Discharge Program.  The only valid SPD permitted for separation under this program is "JGH" and the appropriate RE code associated with this type of SPD at the time of her discharge was RE-3.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

5.  The ABMCR does not upgrade properly issued discharges solely based on the passage of time. 

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)                                         AR20100015295



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ABCMR Record of Proceedings (cont)                                         AR20100015295



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