IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100021781 


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, in effect, that his discharge and reentry eligibility (RE) code be changed.

2.  The applicant states he did very well in basic training.  He had a great attitude and no problems.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) states he had a bad attitude and recommends that he not be allowed to reenlist.  When he and other Soldiers failed the typing test, the other Soldiers were given good military occupational specialty (MOS's) for their second choice, but he was not.  He was discriminated against.

3.  The applicant provides no additional evidence to support his request.

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 15 July 1982.  He asserted on his enlistment contract that he could type 15 words per minute.  He had an enlistment contract guarantee for training in MOS 71L (Administrative Specialist).

3.  The applicant completed basic training and entered advanced individual training on 21 September 1982.  A 26 October 1982 DA Form 2496-1 (Disposition Form) notes the applicant had been in typing training for 15 days.  After 10 days of practice and 3 days of timed writings, he was only typing 10 words per minute.  He was recommended to be dropped from training.

4.  A 2 December 1982 DA Form 4856-R (General Counseling Form) noted the applicant arrived on 10 November and was counseled on 20 November for failure to follow instructions by not being ready for inspection and again on 24 November for failure to go to school.

5.  A 3 December 1982 counseling form noted  the applicant failed training in MOS 76Y (Unit Supply Specialist) and seemed incapable of retaining the necessary information to function as a supply clerk.  He had a negative attitude and lacked self-discipline.  His discharge was recommended.

6.  The applicant acknowledged receipt of those two counseling statements and a third counseling statement without making any comments in response.

7.  On 10 December 1982, he was recommended for discharge.  He was notified that he was being considered for separation with an uncharacterized discharge under the Trainee Discharge Program.  He was notified of his rights to present rebuttal statements in his own behalf, to request consultation with a military lawyer, and to have a separation medical examination.

8.  The applicant waived those rights and acknowledged that he would not be permitted to apply for reenlistment for 2 years.

9.  On 20 December 1982, the applicant was separated with an uncharacterized discharge due to entry-level status performance and conduct.  He completed 5 months and 6 days of creditable active duty service.  He was assigned an RE code of 3.

10.  There is no indication the applicant applied to the Army Discharge Review Board for a review of his discharge within its 15-year statute of limitations.



11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status.  This provision of the regulation applied to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life, or because they lacked the aptitude, ability, motivation, or self discipline for military service, or they had demonstrated characteristics not compatible with satisfactory continued service.  The separation policy applied to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline.  The regulation required an uncharacterized description of service for separation under this chapter.

12.  Pertinent Army regulations provide 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, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was treated unfairly because he was involuntarily assigned to a second MOS that he did not like.

2.  Separation was warranted by the applicant's overall record of military service.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The uncharacterized discharge was required by the applicant's entry-level status.

3.  There appears to be no basis for changing the discharge which established the basis for the RE code.  Therefore, there is no basis for changing the RE code.

4.  There is no basis for granting the applicant's requested relief.



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 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)                                         AR20100021781



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ABCMR Record of Proceedings (cont)                                         AR20100021781



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