IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100016355 


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 change of his Separation Code from "LHJ" to "JDR" or comparable and change of his Reentry (RE) Code from "3" to "1" of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states his noncommissioned officer (NCO) misled him into believing he was being released early without any penalty with an honorable discharge.  He states his DD Form 214 for the period ending 25 January 1995 indicates he was released due to "unsatisfactory performance," which was a shock to him.  He states that his service in Germany and Korea was exemplary.  When the
DD Form 214 was given to him to sign he only saw the word "Honorable" on the form and thought he was leaving the Army in good standing without any mark or blemish on his military record.  He adds in the future, he may wish to join the National Guard to fight for his country.

3.  He provides DD Forms 214 for the period ending 20 November 1992 and
25 January 1995.

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 are not available to the Board for review.  His records were apparently signed out at the time of this request.  However, this case is being considered using his DD Form 214 for the period ending
25 January 1995. 

3.  The applicant enlisted in the Regular Army (RA) on 1 August 1990 and he served through 20 November 1992.  His DD Form 214 for this period of service shows he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4, by reason of expiration of term of service.  He was issued an RE code of "1" and a separation code of "LBK."

4.  The applicant again enlisted in the RA on 5 October 1993.  On 25 January 1995, he was released from active duty after completing 1 year, 3 months,
21 days of creditable active service.  The DD Form 214 he was issued for this period of service shows in:

* item 24 (Character of Service) the entry "Honorable"
* item 25 (Separation Authority) the entry "AR 635-200, Chapter 13"
* item 26 (Separation Code) the entry "LHJ"
* item 27 (Reentry Code) entry "3"
* item 28 (Narrative Reason for Separation) the entry "Unsatisfactory Performance"

5.  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.

6.  Army Regulation 635-200 further states, in pertinent part, 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.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.

7.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states, in pertinent part, that the SPD code of "LHJ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  The SPD/RE Code Cross Reference Table indicates that RE-3 is the proper code to assign members separated with an SPD of "LHJ."

8.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of Army Regulation 601-210, chapter 4.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that the separation code and RE code on his DD Form 214 for the period ending 25 January 1995 should be changed was carefully considered.  Evidence of record shows he was involuntarily released from active duty for unsatisfactory performance.  By regulation, this mandated an assignment of an SPD code of "LHJ" and a corresponding RE code of "3."

2.  Lacking independent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected 

throughout the separation process.  Based on the authority and reason for his separation, he was properly assigned the SPD code of "LHJ" and the RE code of "3."  There is no evidence of an error or injustice related to the entries in question; therefore, they were valid at the time of his separation and remain valid today.  No other SPD or RE code would be appropriate in this case.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant 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.

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)                                         AR20100016355



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ABCMR Record of Proceedings (cont)                                         AR20100016355



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