IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100020002 


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 upgrade of his general discharge to an honorable discharge and removal of his separation program designator (SPD) code of JNC [unacceptable conduct] from his records.

2.  The applicant states his service in the U.S. Army Reserve (USAR) was exemplary.  He contends that he was promoted without delay and he had the highest rated platoon in his brigade.  He adds that he was also a distinguished military student.  He further states this is to clear his good name and to expedite his appointment as a chaplain.

3.  The applicant provides a document which summarizes his accomplishments, a Recruiter Eligibility Data Display (REDD) Report, awards, and commendation certificates.

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 USAR on 8 September 1980 as a Reserve Officers' Training Corps (ROTC) cadet.  He was appointed a Reserve commissioned officer effective 28 May 1982 and he was promoted to first lieutenant (1LT) on 25 May 1985.

3.  In a letter addressed to the applicant, dated 24 January 1987, his commander expressed his concern because for several months he had not been attending drills and numerous attempts by the unit to establish communications with him were unsuccessful.  He was informed he would be given unsatisfactory participation status as long as he did not attend drills and provide adequate justification.

4.  On 23 February 1987, he was issued a Letter of Reprimand because he again failed to respond to the commander's directives.  He was instructed to be present on 21 and 22 February 1987 but he failed to appear and he did not contact his commander regarding the cause.  The commander stated that the applicant's lack of any participation was unbecoming an officer and showed total disregard for his responsibilities to the unit, its Soldiers, and the trust given to him as an officer.

5.  A Record of Unexcused Absences shows he was absent from unit training without proper authority on nine occasions and he failed to provide a cogent or emergency reason for his absences.

6.  In a letter, dated 25 March 1987, the applicant was informed that he had been declared an unsatisfactory participant because he had accumulated nine unexcused absences within a 1-year period and he was to be transferred to the Individual Ready Reserve.  He was also informed that he was not required or authorized to attend any future unit meetings or annual training. 

7.  On 25 August 1987, the applicant's commander initiated a request for involuntary separation with a General Discharge Certificate.  The commander based his request on the applicant's dereliction of duty, lack of satisfactory participation, not complying with the commander's orders, and not complying with official correspondence.  The commander indicated that in a personal telephonic conversation, the applicant did not care about resigning his commission.  The commander also pointed out that in his opinion, the officer did not intend to fulfill his obligated service.
8.  On 21 October 1987, the applicant was notified that involuntary separation action under the provisions of Army Regulation 135-175 (Army National Guard and Army Reserve Separation of Officers), paragraph 2-12, had been initiated against him due to moral or professional dereliction.  The specific basis for the propose action was cited as failing to participate satisfactorily in required Ready Reserve training.  He was informed that counsel had been appointed for him who would advise him concerning the basis for the contemplated separation, its effect, the rights available to him, and the effect of any action taken by him in waving such rights.  He was also advised that he could elect to:

	a.  submit his resignation in lieu of involuntary separation; 

	b.  have his case acted upon by a board of officers; or

	c.  request transfer to the Retired Reserve (if eligible).

9.  On 2 November 1987, the applicant elected to tender his resignation and he declined the opportunity to consult with counsel.  In a Resignation Statement, dated 2 November 1987, he voluntarily tendered his resignation as a Reserve officer of the Army.  In this statement he indicated he understood that if his resignation was accepted, he could be separated either under honorable conditions or under conditions other than honorable.  He also understood that he may be furnished an Honorable or General Discharge Certificate or an under other than honorable conditions discharge as determined by Headquarters, Department of the Army.

10.  On 10 November 1987, his resignation in lieu of involuntary separation was submitted to the U.S. Army Reserve Personnel Center, St. Louis, MO, for review and final determination.  The submitting organization recommended issuance of a General Discharge Certificate.

11.  On 8 December 1987, the U.S. Army Reserve Personnel Center accepted his resignation in lieu of involuntary separation and directed the issuance of a General Discharge Certificate.  On 21 December 1987, he was discharged accordingly.  The separation orders show the type of discharge as "General - 
DD Form 257A," which denotes a General Discharge Certificate.

12.  He provided a document that summarizes his accomplishments and awards and commendation certificates.  He also provided a REDD Report that shows his SPD code as "JNC" (misconduct, moral or professional dereliction or in interest of national security).

13.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states a member of the Reserve components is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1-year period.

14.  Army Regulation 135-175 provides in:

	a.  Paragraph 1-6 that maximum consideration of all events and circumstances leading to the discharge is essential in determining the type of discharge certificate to be furnished or recommended.  The type of discharge certificate to be furnished will be based solely on the officer's behavior and performance of duty during the current period of service when (1) actually performing active duty, active duty for training, or inactive duty training; or (2) actively participating in or under an obligation to participate in Reserve activities, and the behavior relates directly to the officer's Reserve status.  An honorable discharge is a separation with honor.  The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.  A general discharge is a separation under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.

	b.  Paragraph 2-12 that while not all-inclusive, existence of one of several listed or similar conditions, unless successfully rebutted, authorizes involuntary separation of an officer due to moral or professional dereliction.  The listed conditions include "intentional neglect or failure to perform assigned duties, participate satisfactorily in training or comply with applicable directives."

	c.  Section IV (Resignation in Lieu of Involuntary Separation) that an officer who has been notified of being considered for involuntary separation may submit a resignation at any time prior to final action taken on the board proceedings.  Commanders will ensure that there is no element of coercion in connection with a resignation in lieu of involuntary separation and that the officer concerned is allowed at least 10 days after notification of impending involuntary separation to make a personal decision when resignation is contemplated.  A resignation will automatically suspend involuntary separation action pending final action on the resignation.

15.  Army Regulation 635-5-1 (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 that for Soldiers:

who resign in lieu of elimination proceedings by reason of misconduct, moral or professional dereliction or in the interests of national security, assign SPD code BNC who are involuntarily discharged by reason of misconduct, moral or professional dereliction or in the interests of national security, assign SPD JNC 

16.  Army Regulation 635-5-1 further states that SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense and the military services to assist in the collection and analysis of separation data.  This analysis may, in turn, influence changes in separation policy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded and his SPD be removed from his records has been carefully considered.

2.  The applicant's awards and accomplishments were noted; however, evidence shows that he was recommended for involuntary separation due to dereliction of duty, lack of satisfactory participation, not complying with the commanding officer's orders, and not complying with official correspondence.  

3.  He voluntarily elected to submit a resignation in lieu of involuntary separation. There is no evidence showing that he was coerced or otherwise forced to resign. His chain of command recommended that he receive a General Discharge Certificate, which was approved by the appropriate approval authority.

4.  The issue of an honorable discharge is conditioned on proper military behavior and proficient and industrious performance of duty, giving due regard to the grade held and the capabilities of the officer concerned.  A general discharge is a separation under honorable conditions of an officer whose military record is not sufficiently meritorious to warrant an honorable discharge.  Considering that his resignation was the result a pending involuntary separation action, the issuance of a general discharge appropriately recognized the overall quality of his service.  He failed to provide evidence showing that his discharge and character of service given were in error or unjust.

5.  Regarding his SPD code, the governing regulation provides that SPD codes are to be used on the DD Form 214 of separating Soldiers from active duty to identify reasons for and types of separation.  Because he was not on active duty 

he was not issued a DD Form 214; therefore, he was not officially issued an SPD code in conjunction with his resignation in lieu of involuntary separation action.

6.  Nevertheless, although there was no basis for assigning the applicant an SPD code, this code is incorrectly represented on his REDD Report.  Therefore, this report should be corrected to show the SPD code of BNC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his record to show he was assigned a separation program designator code of BNC instead of the separation program designator code of JNC he currently holds.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his general discharge to an honorable discharge.



      ____________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)                                         AR20100020002



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ABCMR Record of Proceedings (cont)                                         AR20100020002



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