IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018911 


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 of his undesirable discharge (UD) and a change to the authority and narrative reason for discharge.  

2.  The applicant states the first time he applied for an upgrade of his discharge in 1984, his attorney never showed for the review board.  

3.  The applicant provides no documentary evidence in support of his 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 record shows he enlisted in the Regular Army on 29 March 1974.  He was trained in and awarded military occupational specialty (MOS) 
31M (Multi-Channel Communication Equipment Operator). On 23 September 1974, he was advanced to the rank/grade of private first class (PFC)/E-3, which is the highest rank/grade he held while serving on active duty.

3.  The record documents no acts of valor or significant achievement.  It does confirm a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three separate occasions between 13 April 1974 and 
19 March 1975.  It also includes a special court-martial (SPCM) conviction for the wrongful possession of illegal drugs and assault.

4.  On 23 April 1976, after being advised that action was initiated to separate him for misconduct, the applicant consulted with legal counsel.  He was advised of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, paragraph 3-5, for misconduct because of frequent incidents of a discreditable nature, its effects, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant completed a rights statement and he elected to waive consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit statements in his own behalf.

5.  On 29 April 1976, the separation authority directed the applicant be discharged from the military under the provisions of Army Regulation 635-200, chapter 13, and that he be furnished a UD.  On 30 April 1976, the applicant was discharged accordingly.

6.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his discharge shows he was separated under the provisions of Army Regulation 635-200, chapter 13, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He was issued a separation program designator (SPD) code of "JLB" and a reenlistment code of "RE-3."

7.  On 24 September 1974, the Army Discharge Review Board, after careful consideration of the applicant’s entire record and the issues he presented, determined his discharge was proper and equitable and unanimously voted to deny his request for an upgrade of the character of his discharge and not to change the authority and reason for his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for misconduct.  Members separated for misconduct normally received a UD.

9.  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.

10.  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.

11.  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 JLB is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 13-5a(1), by reason of unfitness - frequent involvement of a discreditable nature with authorities.   The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of JLB.

12.  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 and the U.S. Army Reserve.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because his attorney was not present at the review of his discharge in 1984 has been carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement but does reveal a significant disciplinary history that includes his acceptance of NJP on  three separate occasions and an SPCM conviction.  Therefore, his undistinguished record of service was not sufficiently meritorious to support the issue of a GD or an HD at the time of his discharge, and does not support an upgrade to the character of service or change to the authority and narrative reason for discharge now. 

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20100018911



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ABCMR Record of Proceedings (cont)                                         AR20100018911



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