IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100030142 


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 1978 general discharge to an honorable discharge and correction of his reentry (RE) code for the period ending in 1978
* award of the "European Medal" (in effect the Army of Occupation Medal with Germany Clasp), Overseas Service Ribbon, and all "company ribbons" (in effect unit awards) authorized 

2.  He states, in effect, he was setup in Germany by his commanding officer (CO) on several bogus issues.  His CO was high on hashish when he told him that he would destroy him and his military record.  The applicant states he recently discovered he was issued a general discharge for "Breach of Contract" with an RE code of 1 and a separation program designator (SPD) code of "JMJ." He also states his DD Form 214 (Report of Separation from Active Duty) does not show all of his awards.  He served in a combat theater situation when he was assigned to the 92nd Engineer Battalion, Fort Stewart, GA.  Therefore, he believes he is entitled to the above awards.  

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 enlisted in the Regular Army (RA) on 6 April 1976 for 3 years.  He completed the training requirements and he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  Upon completion of training he was assigned to Company A, 92nd Engineer Battalion, Fort Stewart, GA.  

3.  He was honorably discharged from the RA on 28 July 1977 for the purpose of immediate reenlistment.  He was credited with completing 1 year, 3 months, and 23 days of net active service.  His DD Form 214 for this period shows in:

* Item 9c (Authority and Reason) paragraph 5-10, [separation program designator (SPD)] code KHC," and Army Regulation 635 [-200] 
* Item 10 (RE Code) “RE-1”
* Item 13 (Decorations, Medal, Badges, Citations, and Campaign Ribbons Awarded or Authorized) Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Marksman Marksmanship Qualification Badge with Hand Grenade Bar

4.  On 29 July 1977, he reenlisted in the RA for MOS 64C, in pay grade E-3, and for 3 years.

5.  He served with the 78th Transportation Company in Russelsheim Germany from 1 December 1977 through 25 July 1978.

6.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on the following dates:

* 3 May 1978 - for  failing to go to his appointed place of duty on two  occasions
* 11 May 1978 - for failing to go to his appointed place of duty on two occasions and being disrespectful in language towards a noncommissioned officer (he was reduced to pay grade E-2 on 11 May 1978)
* 17 July 1978 - for wrongful possession of the remains of a cigarette of marijuana and a homemade smoking pipe containing the burnt residue of marijuana

7.  On 8 June 1978, the applicant's company commander notified the applicant of his intent to initiate action to effect his discharge pursuant to the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-4c, for unsuitability.  

8.  On 8 June 1978, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action.  He acknowledged he understood that he might be issued a general discharge and the effects of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 21 June 1978, the applicant's company commander recommended that he be eliminated from the service for unsuitability.  He stated the discharge was recommended because of the applicant's apathy.  He also stated the applicant had worked under two different squad leaders, platoon sergeants, and platoon leaders since arriving in the company and he had showed no improvement.  The applicant had bucked all efforts at becoming a productive Soldier.  He had displayed apathetic attitude towards his duty assignment and general disrespect for authority.  

10.  On 5 July 1978, the applicant's battalion commander recommended approval of the applicant's discharge for unsuitability.  The battalion commander stated that due to the applicant's negative performance and present attitudes, he deemed that a rehabilitative transfer would be inappropriate and would not produce a quality Soldier.  

11.  On 14 July 1978, the appropriate separation authority approved the applicant’s separation action and directed the issuance a general discharge.  Accordingly, the applicant was discharged in pay grade E-2 on 26 July 1978.  

12.  His DD Form 214 for this period shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability, with a General Discharge Certificate.  He was credited with completing 11 months and 28 days of net active service during the period under review and no lost time.  Additionally, this form shows in:

* Item 9c (Authority and Reason) - Army Regulation 635-200, paragraph 
3-4c, and SPD "JMJ"
* Item 10 (RE Code) "RE-3" 
* Item 13 - the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) and Marksman Marksmanship Qualification Badge with Hand Grenade Bar

13.  There is no evidence he submitted a request to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  

   a.  Chapter 5 provided for discharge for the convenience of the government.  
   
   b.  Paragraph 5-9 provided for discharge for the purpose of immediate enlistment or reenlistment. 

   c.  Paragraph 13-4c provided for the separation of individuals for Unsuitability for Apathy.  A discharge under other than honorable conditions was normally considered appropriate.  However, a general or honorable discharge may be awarded, if appropriate.

   d.  Paragraph 3-7a, stated an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed 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 those stated reasons.  The SPD code of "JMJ" as shown on his 1978 DD Form 214 was appropriate when the narrative reason was involuntary discharge for "Unsuitability - Apathy" and the authority for discharge was Army Regulation 635-200, paragraph 13-4c.

16.  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 "JMJ" had a corresponding RE code of "3."  
17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.

18.  Army Regulation 600-8-22 (Military Awards) provides that the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty in a qualifying location.  The Army of Occupation Medal with Germany Clasp is authorized for service with the Army of Occupation of Berlin between 9 May 1945 and 2 October 1990.  

19.  Army Regulation 600-8-22 also states the Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and found to be without merit.  The evidence of record shows he enlisted in the RA on 6 April 1976.  He served until he was honorably discharged on 28 July 1977 for the purpose of immediate reenlistment.  He was issued a DD Form 214 confirming he was separated under the provisions of Army Regulation 635-200, paragraph 5-10, for immediate reenlistment, and as a result he was appropriately assigned an SPD code of "KHC" and RE code of 1.

2.  The evidence of record also shows he was punished under Article 15 on three occasions after reenlisting in the RA on 29 July 1977.  In June 1978, the applicant's company commander initiated action to eliminate him for unsuitability due to apathy.  The applicant's company commander stated that he bucked all efforts at becoming a productive Soldier.  He displayed an apathetic attitude towards his duty assignment and general disrespect for authority.  His battalion commander recommended approval and deemed that a rehabilitative transfer was inappropriate; he did not believe the applicant would become a productive Soldier.  

3.  At the time the separation action was initiated, he acknowledged he understood the reason he was being separated and that he might be issued a general discharge.  It appears his repeated unsatisfactory performance diminished the quality of his service below that meriting a fully honorable discharge in 1978.

4.  He was discharged on 26 July 1978 and issued a general discharge.  The 
DD Form 214 he was issued confirms he was separated under the provisions of Army Regulation 635-200, paragraph 13-4c, for Unsuitability - Apathy, and as a result he was appropriately assigned an SPD code of "JMJ" and RE code of 3.  

5.  He has failed to show the SPD and RE codes shown on his 1978 DD Form 214 are incorrect.  In the absence of such evidence, it appears his 1978 discharge proceedings were accomplished in accordance with applicable regulations and the types of discharge directed and the reason for discharge were appropriate.

6.  There is no evidence the applicant was ever separated due to breach of contract.

7.  The evidence also confirms he served in Germany from 1 December 1977 through 25 July 1978.  However, there is no evidence he served in Berlin during the qualifying period of service.  He is therefore not entitled to award of the Army of Occupation Medal with Germany Clasp and correction of his DD Form 214 to show this award.

8.  The evidence of record does not show the applicant met the criteria for award of the Overseas Service Ribbon during his periods of active service or correction of his DD Form 214 to show this award.  

9.  His records also show he was properly credited with all earned awards.  The evidence of record does not support his request for correction to his DD Form 214 to show any additional awards. 

10.  In view of the foregoing, there is no basis for granting him the 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)                                         AR20100030142



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ABCMR Record of Proceedings (cont)                                         AR20100030142



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