BOARD DATE:   19 January 2012

		DOCKET NUMBER:  AR20110013649 


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 that his 1980 DD Form 214 (Certificate of Release or Discharge from Active Duty) be upgraded to honorable and the reentry (RE) codes of 3 and 3B be removed. 

2.  The applicant states the general discharge was too severe for the charge of failure to repair.  He committed no seditions, drug offenses, or actions inconsistent with military standards.

3.  The applicant provided copies of the 1985 letters of support from his previous company commander and battalion command sergeant major.

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 on 18 October 1977 for 3 years.  He completed training and he was awarded military occupational specialty
31M (Multichannel Communications Equipment Operator).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 18 (Appointments and Reductions) he was advanced to specialist four (SP4) on 31 January 1979 and reduced to private (PV2) on 7 February 1980; and

	b.  item 21 (Time Lost) 9 and 10 June 1980 (2 days) due to being confined by civil authorities. 

4.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 14 January 1980, states in item 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) "PFC Sxxxxx has been counseled on numerous occasions about tardiness, but has repeatedly been late for formations.  He requires continuous supervision to accomplish the simplest task.  He has failed to respond to counseling about his punctuality and had to be counseled several times before paying his debt to Gordon's Jewelers.  Moreover, his general attitude conveys subliminal insubordination."  The applicant elected not to submit a statement on his own behalf.  The bar was approved on 1 February 1980 and reviewed on 
21 August and 17 October 1980.  Each review included a recommendation that the bar remain in effect.

5.  On 11 July 1980, the applicant was recommended for discharge due to misconduct.  On 5 September 1980, his brigade commander recommended approval, and on 16 October 1980, the appropriate authority approved the recommendation for discharge under the provisions of AR 635-200, for misconduct with the issuance of an Undesirable Discharge Certificate.

6.  The applicant's DD Form 214 shows he was released from active duty with a general discharge on 21 October 1980, under the provisions of Army Regulation 635-200 due to completion of required active service.  He had completed 3 years and 3 days of creditable active service.  He was assigned a Separation Program Designator (SPD) code of LBK and RE codes of 3 and 3B.  His service was characterized as general.  Item 29 (Dates of Time Lost During This Period) shows "800609-800610."  

7.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes including RA RE codes.  RE-3 applies to persons separated from their last period of service with a waivable disqualification.  RE 3B applies to persons who have time lost during their last period of service.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

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

	a.  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.

   b.  Paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his RE codes of 3 and 3B should be removed from his DD Form 214. 

2.  The applicant was separated from the Army while under a bar to reenlistment.  The bar was for failure to pay debts, and included counseling for tardiness.  It indicated he was repeatedly late for formation.  He was reduced in rank on one occasion and confined on another.  Despite the applicant's assertions, his conduct certainly was inconsistent with military standards.  Discharge proceedings were initiated against him.  Only due to the failure to process that action in a timely manner was he separated by reason of expiration of term of service.  

3.  The RE codes of 3 and 3B, establishing his enlistment/reenlistment ineligibility with waiver were correctly entered on his DD Form 214 in accordance with governing regulations due to the applicant's lost time.

4.  The letters of support provided by the applicant were noted; however, they do not mitigate his conduct during his period of service.

5.  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)                                         AR20100007318



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ABCMR Record of Proceedings (cont)                                         AR20110013649



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