IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100028659 


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 an upgrade of his general discharge to a fully honorable discharge.

2.  The applicant states his discharge was due to his efforts to save his marriage at the time.  He would like to reenter the Army and if given the chance, he would prove himself worthy.

3.  The applicant did not provide any 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 enlisted in the Regular Army (RA) on 25 August 1981 for a period of 4 years.  He held military occupational specialty 63Y (Track Vehicle Mechanic).  He also executed a 4-year reenlistment on 21 March 1985 and he attained the rank/grade of specialist four (SP4)/E-4.

3.  His records further show he served in Germany from 8 January 1982 to 17 August 1984 and 19 November 1986 to 5 April 1989.

4.  His records reflect an extensive history of counseling by members of his chain of command for various infractions including leaving his assigned duty without permission, improperly preparing for his duties, breaking restriction, continuous consumption of alcohol despite enrollment in a drug and alcohol prevention program, disrespecting a noncommissioned officer (NCO), missing formation, disobeying orders, and failing to report.

5.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 13 April 1988, for willfully disobeying a lawful order from an NCO, disrespecting a superior NCO, and dereliction of duties
* on 16 September 1988, for wrongfully urinating from the barracks window

6.  On 20 January 1989, his immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him for various misconduct offenses, negative attitude, being disrespectful, failing to follow instructions, continued consumption of alcohol despite enrollment in a drug and alcohol program, and overall lack of potential for further service.  He acknowledged receipt of a copy of the DA Form 4126-R, that he was counseled and advised of the basis for the action, and he elected not to submit a statement in his own behalf.  The barring action was ultimately approved on 25 January 1989 by the appropriate authority. On 27 January 1989, the applicant was notified that the Bar to Reenlistment initiated against him was approved on 25 January 1989 and that he was had the right to appeal the imposition of the Bar to Reenlistment.  He elected not to submit an appeal.

7.  On 28 February 1989, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct - a pattern of misconduct.  He recommended a general discharge.

8.  On 28 February 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived his right to a formal hearing in his case contingent upon receiving a general under honorable conditions discharge.

9.  He further indicated he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge/character of service which is less than honorable.  He elected not to submit a statement in his own behalf.

10.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, chapter 14, for misconduct.

11.  On 3 March 1989, his intermediate commander recommended approval of the discharge with the issuance of a General Discharge Certificate.

12.  On 22 March 1989, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed the issuance of a General Discharge Certificate.  The applicant was accordingly discharged on 6 April 1989. 

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - pattern of misconduct with a general discharge.  He completed 7 years, 7 months, and 12 days of creditable active service.  Item 26 (Separation Code) shows the entry JKM and item 27 (Reenlistment (RE) Code) shows the entry RE 3-3C.

14.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established 

pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such was merited by the Soldier's overall record.  

16.  Army Regulation 635-200, paragraph 3-7a, states 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 635-5-1 (Separation Program Designator (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 JKM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – pattern of misconduct.  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 JKM.

18.  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 U.S. Army Reserve (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.

	c.  RE-3C applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements or who have been denied reenlistment under the qualitative retention process.  They are ineligible for enlistment unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had a history of misconduct including accepting of NJP on two occasions, multiple negative counseling, and a Bar to Reenlistment.  His misconduct continued and he failed to respond to counseling or show potential for further service.  Accordingly, his chain of command initiated separation action against him.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

3.  His desire to reenter military service and serve his country is admirable; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service and are responsible for processing requests for waiver.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100028659



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ABCMR Record of Proceedings (cont)                                         AR20100028659



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