IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100028487 


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, an upgrade of his general discharge under honorable conditions.

2.  He states he was involuntarily discharged at the end of his active obligated service when he wanted to reenlist and serve his country.

3.  He provides no additional evidence.

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 (RA) on 12 October 1977.

3.  His record contains a DA Form 2-2 (Record of Court Martial Conviction) which shows he was convicted by a summary court-martial for drinking on duty on or about 24 August 1978.

4.  His record contains a DA Form 4124-R (Bar to Reenlistment Certificate) which shows he received a bar to reenlistment on 19 December 1979 for numerous offenses to include a summary court-martial, nonjudicial punishment under the Uniform Code of Military Justice (which is not included in his official record), refusing to clean his room, missing formation, failing to make an alert, shoplifting, and using profanity toward a noncommissioned officer.

5.  On 4 November 1981, he was released from active duty after the completion of his required active service with a general discharge under honorable conditions.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was assigned a separation program designator (SPD) code of "LBK" and reentry eligibility (RE) codes of 3, 3B, and 3C.  He was credited with completing 4 years of active service with 23 days of lost time.

6.  References:

	a.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

		(1)  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiver.  They are ineligible unless a waiver is granted.

		(2)  RE-3B applies to persons who have lost time during their last period of service.  They are ineligible for reenlistment unless a waiver is granted.

		(3)  RE-3C applies to persons who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements of Army Regulation 601-280 (Army Retention Program) or who have been denied reenlistment under the Qualitative Retention Program.  They are ineligible for enlistment unless a waiver is granted.

	b.  Army Regulation 601-280 (Army Reenlistment Program) provided that persons with disqualifications listed below may be eligible to apply for RA enlistment under the provisions of Army Regulation 601-210 at a later date:

		(1)  persons being separated from their current term of service whose DD Forms 214 are coded RE-1A, RE-2A, RE-3, RE-3B, RE-3C, or RE-4A; and

		(2)  persons being separated from their current term of service with a Bar to Reenlistment in effect with less than 18 years of active service.

	c.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

	d.  Army Regulation 635-5-1 (Separation Program Designator 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 notes that an SPD code of "LBK" is the appropriate code when enlisted Soldiers are being involuntarily discharged upon completion of their required active service because they are ineligible for, barred from, or otherwise denied reenlistment at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he completed his obligated period of active service.  However, the applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.

2.  His SPD code LBK indicates he was involuntarily released from active duty because he was not eligible for immediate reenlistment at the conclusion of his initial enlistment based on a local bar to reenlistment.  As such, he was assigned RE codes of 3, 3B, and 3C for persons ineligible for immediate reenlistment.

3.  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.

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

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)                                         AR20100028487



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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