BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028411 


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.

2.  He states there is no actual error or injustice with his discharge.  However, he requests a discharge upgrade so that he may reenter the Army and serve his country in the manner he should have during his first enlistment.  He offers that it has been 21 years and he has tried to live his life in a more honorable way and has learned from his past mistakes.

3.  He provides a self-authored statement. 

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 (RA) on 21 April 1987.  He was trained in and awarded military occupational specialty 11C (indirect fire infantryman).

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on four occasions for the following offenses:

* on 16 December 1987 for failing to be at his appointed place of duty on
23 September 1987, 5 October 1987, and 16 November 1987
* on 18 July 1988 for failing to go at the time prescribed to his appointed place of duty on 21 June 1988
* on 27 July 1988 for being absent without leave (AWOL) from 27 June 1988 to 13 July 1988
* on 7 February 1989 for failing to go at the time prescribed to his appointed place of duty on 24 January 1989

4.  On 6 March 1989, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b and c for acts or patterns of misconduct, specifically his NJP actions.

5.  On an unspecified date, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation and its effects and the rights available to him, he elected not to submit statements in his behalf.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further acknowledged that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.

6.  On 30 March 1989, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14.  He directed issuance of a General Discharge Certificate.

7.  His DD Form 214 shows he was discharged on 18 April 1989 under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - pattern of misconduct, with a characterization of service of general under honorable conditions.  Item 27 (Reenlistment (RE) Code) of this form shows his RE code as "3."  He was credited with completing 1 year, 11 months, and 7 days of active service with time lost during the period 20 April 1988 to 24 April 1988 and 27 June 1988 to 12 July 1988, for a period of 21 days.

8.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  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.

11.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including 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 for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded so that he may reenter the military.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of reentering military service. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

3.  His record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  The applicant is advised that although no change to his discharge is recommended, this does not mean he is being denied reentry into the military.  While an RE-3 does apply to persons who are not considered fully qualified for reentry or continuous service there are provisions for a waiver of the disqualification.  If he desires to enlist he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time and are required to process 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)                                         AR20100028411



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ABCMR Record of Proceedings (cont)                                         AR20100028411



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