IN THE CASE OF:	  

		BOARD DATE:	 15 September 2011 

		DOCKET NUMBER:  AR20110004356 


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 (GD) to an honorable discharge (HD).

2.  The applicant states:

	a.  he was 20 years old at the time of his discharge which resulted from his underage drinking and for drinking on duty three times;

	b.  he served with the 3rd Battalion, 505th Parachute Infantry Regiment which was always in a deployment ready force status;

	c.  since his discharge he graduated from Texas Tech University, married, and now has a 2-year old daughter;

	d.  he was naive and wanted to be accepted by fellow paratroopers, thereby ruining the greatest opportunity he had; and

	e.  he is currently trying to reenter the Army and desires to correct his mistake.

3.  The applicant provides a self-authored statement and extracts of multiple Official Military Personnel File (OMPF) document.

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 8 August 1991.  He was trained in and served in military occupational specialty 11B (Infantryman).

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 7 May 1992, for wrongfully consuming alcohol while under the legal age of 21 and being found drunk while on duty
* 9 November 1992, for disobeying a lawful order not to drink alcoholic beverages while under the age of 21
* 30 January 1993, for being drunk and disorderly

4.  The applicant’s record also shows he was formally counseled on six occasions between 14 March and 19 November 1992 for a myriad of disciplinary infractions that include:

* drinking while under age
* attempting to avoid paying a taxi cab driver
* attempting to evade the police
* being drunk on duty
* showing disrespect towards a noncommissioned officer
* failing to go at the time prescribed to his appointed place of duty

5.  On 10 March 1993, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

6.  On 14 May 1993, the unit commander notified the applicant he was initiating action to separate him for unsatisfactory performance with a GD.  The unit commander cited the applicant's NJPs received for being drunk and disorderly and his underage drinking as the basis for his separation action.

7.  On 17 May 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects.  Subsequent to this counseling, he elected to waive representation by counsel; however, he elected to submit a statement in his own behalf which is not in the available record for review.

8.  On 17 May 1993, the separation authority approved the applicant's separation action, waived further rehabilitation requirements, and directed the applicant receive a GD Certificate.

9.  Accordingly, on 16 June 1993, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13 with a GD.  He completed 1 year, 10 months, and 9 days of creditable active service.  The DD Form 214 he was issued at the time shows he was discharged by reason of unsatisfactory performance and he was assigned a separation code of JHJ and a reentry (RE) code of "3."

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel.  Chapter 13 provided for separation 

due to unsatisfactory performance when in the commander's judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions.

12.  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.

13.  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 JHJ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13 by reason of unsatisfactory performance.  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 JHJ.

14.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  The applicant was provided an opportunity to consult with legal counsel; however, he elected not to do so.  He was advised of the basis for the contemplated separation action and of the rights available to him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  Further, the applicant's record includes three NJP actions within an 8-month period for alcohol-related offenses while under the legal age of 21.  Clearly, the applicant's misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.  His service did not support the issuance of an HD by the separation authority at the time of discharge and it does not support an upgrade now.

3.  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 his 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 required to process RE code waivers.

4.  Records show that the applicant was 19 years, 5 months, and 14 days of age at the time of his first alcohol-related incident for which he received NJP action, followed by his other numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  In view of the forgoing, 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)                                         AR20110004356



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004356



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1