IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100023504 


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 reconsideration of his earlier petition to correct the following entries on his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* item 4a (Grade, Rate or Rank)
* item 4b (Pay Grade)
* item 21 (Signature of Member Being Separated)
* item 24 (Character of Service)
* item 25 (Separation Authority)
* item 26 (Separation Code)
* item 27 (Reenlistment Code)
* item 28 (Narrative Reason for Separation)
* item 30 (Member Requests Copy 4)

2.  The applicant states:

	a.  he was not adjudicated of any crimes under the Uniform Code of Military Justice (UCMJ);

	b.  he made some mistakes under stress and duress during a period of training;

	c.  his acts of leadership, excellent military discipline, and accomplishments displayed in the performance of his duties and the assistance he provided fellow Soldiers went unnoticed because those who observed his performance most likely mistook him for a cadre member instead of the private that he was;

	d.  he was reprimanded for reporting to the charge of quarters a few minutes late due to inclement weather and while being sick with a fever;

	e.  prior to transporting some troops to a field duty assignment under stress and duress training, he placed his weapon against a tree in his haste to inspect his truck and left it behind, his weapon was recovered and reported to the commanding officer; 

	f.  the reason and authority for his discharge and reentry eligibility (RE) code are self-incriminating, a defamation of character, and slanderous; and

	g.  he needs his record corrected in order to pursue a position in the Army National Guard (ARNG) or U.S. Army Reserve (USAR) music program.

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100001024 on 29 July 2010.

2.  During its original review of the case, the Board determined there was insufficient evidence to warrant correction of items 4a, 4b, 21, 24, 25, 26, 27, 28, and 30, and accordingly denied his request.

3.  The applicant's record shows he enlisted in the Regular Army on 28 November 1983.  He was trained in and awarded military occupational specialty 64C (Motor Transport Operator).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was promoted to the rank of private first class/E-3 on 28 November 1984 and this was the highest rank he attained while on active duty.  It also shows he was reduced to private (PV2)/E-2 on 21 June 1985.

5.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on the following three dates for the reasons indicated:

* 8 March 1985 – disobeying a lawful order
* 27 March 1985 – misappropriating government property (lost M-16 rifle)
* 21 June 1985 – failing to go to the appointed place at the appointed time

6.  On 16 July 1985, the applicant underwent a mental status evaluation for separation processing that showed:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met medical retention requirements
* he had the mental capacity to understand and participate in separation proceedings

7.  On 16 July 1985, the unit commander requested a waiver of the rehabilitative requirements and indicated transferring the applicant to another unit would contribute to ruining the morale of a good unit.

8.  The unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance.  The unit commander cited the applicant's patterns of misconduct, unreliability, and inability to adapt to the military to become a good Soldier regardless of the Army's efforts as the basis for the elimination action taken.

9.  On 25 July 1985, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to make a statement in his own behalf. 
The applicant stated he acknowledged his regret of not being able to finish what he started, his failure to accomplish his goals and complete his commitment to the Army, and his understanding of his commander's elimination action.

10.  On 1 August 1985, the separation authority approved the applicant's separation and directed that he receive a general discharge.  He also waived further counseling and rehabilitation requirements.

11.  On 9 August 1985, the applicant was released from active duty (REFRAD) accordingly, having completed 1 year, 8 months, and 12 days of creditable active duty service.


12.  The DD Form 214 issued to the applicant on the date of his discharge includes the following entries in the items indicated:

* item 4a – "PV2"
* item 4b – "E-2"
* item 21 – contains the applicant's signature
* item 23 – "RELEASE FROM ACTIVE DUTY"
* item 24 – "UNDER HONORABLE CONDITIONS"
* item 25 – "CHAPTER 13, ARMY REGULATION 635-200"
* item 26 – "LHJ"
* item 27 – "RE-3, 3C"
* item 28 – "UNSATISFACTORY PERFORMANCE"
* item 30 – contains the applicant's initials

13.  On 17 February 1988 after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.

14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4) states:

	a.  for items 4a and 4b, enter the active duty grade of rank and pay grade at the time of separation;

	b.  for item 21, the signature of the member must be legible on all copies.  A second signature may be needed on copy 4.  Use payroll signature when signing the form;

	c.  for item 24, enter the type of discharge issued;

	d.  for item 25, enter the regulatory or statutory authority authorizing separation;

	e.  for item 26, enter the proper separation program designator (SPD) code representing the reason for separation in accordance with Army Regulation 
635-5-1 (SPD Codes);


	f.  for item 27, enter the appropriate RE code in accordance with Army Regulation 601-210 (Active and Reserve Components Enlistment Program);

	g.  for item 28, enter the reason for separation based on the regulatory or statutory authority for separation in accordance with Army Regulation 635-5-1; and

	h.  for item 30, have the member initial in this item if he or she desires copy 4 of the DD Form 214.

15.  Chapter 13 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 chapter would be characterized as honorable or under honorable conditions.

16.  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.

17.  Army Regulation 601-210, then in effect, provided that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Chapter 3 included a list of Armed Forces reentry codes.

    a.  RE-3 applied to persons who are not qualified for continued Army service, but the disqualification is waivable.
    
    b.  RE-3C applied to persons who completed over 4 months of service who do not meet the basic eligibility pay-grade requirements of Army Regulation 601-280 (Army Reenlistment Program), chapter 2, or who have been denied reenlistment under the Qualitative Retention Process in accordance with Army Regulation 600-200 (Enlisted Personnel Management System), chapter 4; these Soldiers are ineligible for enlistment unless a waiver is granted.

18.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  This regulation shows the SPD code of "LHJ" is appropriate when the narrative reason for involuntary discharge is "unsatisfactory performance" and the authority for discharge is Army Regulation 635-200, chapter 13.

19.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The SPD code of "LHJ" has a corresponding RE code of "3."  The Soldier's file and other pertinent documents must be reviewed in order to make a final determination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends items 4a, 4b, 21, 23, 24, 25, 26, 27, 28, and 30 of his DD Form 214 should be corrected.

2.   The evidence of record confirms:

	a.  the applicant was reduced to PV2/E-2 as a result of NJP on 21 June 1985, and this is the rank and grade he held on the date of his REFRAD;

	b.  he authenticated items 21and 30 of his DD Form 214 with his signature and initials, respectively;

	c.  having been notified of the elimination action taken against him under the provisions of chapter 13, Army Regulation 635-200, by reason of "unsatisfactory performance," the applicant consulted with legal counsel and was provided the opportunity to provide a statement in his own behalf;

	d.  he acknowledged his failure to complete his own goals, his regret to complete his commitment to the Army, and his understanding of the elimination action taken against him;

	e.  all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process;

	f.  based on the authority and reason for the applicant's discharge, he was appropriately assigned SPD code "LHJ" with a corresponding RE code "3"; and

	g.  the applicant's three records of NJP and misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge.

3.  In view of the forgoing, the entries contained in items 4a, 4b, 21, 24, 26, 27, 28, and 30 of the applicant's DD Form 214 are correctly documented and there remains no basis for granting the requested relief in this case.

4.  In response to the applicant's desire to pursue a position in the Army National Guard or U.S. Army Reserve, his RE codes of "3" and "3C" are waivable.  Therefore, he is advised that if he desires to reenter military service he should contact a local recruiter who can best advise him on his eligibility.  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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100001024, dated 29 July 2010.



      __________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)                                         AR20100023504



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ABCMR Record of Proceedings (cont)                                         AR20100023504



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