IN THE CASE OF:	  

		BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028643 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the appropriate narrative reason, reentry (RE) code, and separation code based on separation due to hardship.

2.  The applicant states he was released from his unit in Germany with an honorable characterization of service due to hardship.  He contends that he completed basic and advanced individual training at Fort Benning, GA.  He did not want to get out of the service when he did, but he had no choice because he had to take care of his mother; that was the reason for his hardship discharge.  He now wants to enlist in the U.S. Army Reserve (USAR) but he needs his 
DD Form 214 corrected.

3.  The applicant provides a copy of his DD Form 214, DD Form 4/3 (Enlistment Contract), and National Archives and Records Administration (NA) Form 13038 (Certification of Military Service).

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.  On 29 January 1992, the applicant enlisted in the Regular Army for a period of 2 years and 16 weeks.  He was subsequently assigned to Fort Benning for one-station unit training (OSUT).

3.  On 29 May 1992, the applicant completed OSUT and he departed Fort Benning for duty in Europe.

4.  On 15 June 1992, the applicant was assigned to Company D, 4th Battalion, 12th Infantry Regiment, located in the Federal Republic of Germany.

5.  The applicant received counseling on:

* 8 July 1992 for personal problems - grandfather died - parents getting divorced - needed to see the chaplain
* 13 July 1992 for performance and attitude - recommended for elimination
* 14 July 1992 for missing formation on 10 and 13 July 1992 - personal problems interfering with job performance

6.  On 21 July 1992, the applicant was notified by his commander of his intention to take action to separate him from the service due to his inability to adapt socially or emotionally to military life.  The applicant was informed of his rights.  The applicant elected not to make a statement in his own behalf, he did not desire to have a separation medical examination, and he declined the opportunity to consult with either military or civilian counsel.

7.  On 21 July 1992, the applicant’s commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, based on his inability to adapt socially or emotionally to military life as demonstrated by his characteristics not compatible with satisfactory continued service.  The commander recommended an entry-level status separation.  At the time he had completed 172 days of active service.  The commander noted that the applicant had expressed a desire to be released from active duty.


8.  On 22 July 1992, the appropriate authority approved the recommendation and directed that the applicant be released from active duty in an Entry Level Status due to performance and conduct, with an uncharacterized character of service.  He further directed the applicant's transfer to the Individual Ready Reserve.

9.  On 3 August 1992, he was released from active duty accordingly.  He completed 6 months and 5 days of creditable active service.  His DD Form 214 issued at the time shows in:

* item 25 (Separation Authority) the entry "AR [Army Regulation] 635-200, Para[graph] 11-3a
* item 26 (Separation Code) the entry "LGA"
* item 27 (Reentry Code) the entry "3"
* item 28 (Narrative Reason for Separation) the entry "Entry Level Status Performance and Conduct"

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

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  It states:

	a.  chapter 6, provides the conditions, criteria, and procedures for requesting and receiving a discharge due to dependency or hardship.  The Soldier must request, in writing, separation from the Service because of dependency or hardship.  The supporting evidence normally will be in affidavit form.  The evidence must substantiate the dependency or hardship conditions.  When the basis for the application is disability of a member of the Soldier’s family, a physician’s certificate should be furnished showing the diagnosis, prognosis, and date of disability.

	b.  chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.


12.  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 the SPD code LGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  The SPD/RE Code Cross Reference Table stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of LGA.

13.  Army Regulation 635-200 further states 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 (RA) and the USAR.  Table 3-1 included a list of the 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 requests correction of his separation code, RE code, and narrative reason for separation, to show he was separated due to hardship because he now desires to join the USAR.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant's separation code, RE code, and narrative reason for separation are correct as shown based on the facts of the case.

4.  There is no evidence of record showing that the applicant had requested discharge due to dependency or hardship, or that he would have qualified for such a discharge.


5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on her eligibility for returning to military service.  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.

6.  While the applicant’s desire to continue in the service to his country is commendable, 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 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)                                         AR20100028643



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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