IN THE CASE OF:	  

		BOARD DATE:  15 March 2012

		DOCKET NUMBER:  AR20110015473 


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 amendment of his narrative reason for discharge, amendment of his reentry eligibility (RE) code of RE-3, and restoration of his rank to staff sergeant (SSG)/E-6.

2.  He states:

	a.  He was a decorated noncommissioned officer (NCO) who was accused of not informing a first lieutenant (1LT) regarding a one-half ton jack.

	b.  He was falsely accused of not maintaining his finances or writing bad checks.

	c.  He received a letter of reprimand on 24 November 1990.

	d.  His rank was restored then removed twice from SSG/E-6 to sergeant (SGT)/E-5.  He was never reduced in rank to specialist (SPC)/E-4.

	e.  He was discharged in the rank of SPC/E-4 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, with a separation program designator (SPD) code of "JHJ" (Unsatisfactory Performance).

	f.  He alleges:

		(1)  his character and integrity were defamed,

		(2)  he was mistreated by a superior officer,

		(3)  he didn't receive support from his unit and battalion commanders,

		(4)  the facts were not considered in his behalf and evidence was lost by his command to support his facts,

		(5)  his rights were violated by members of command and staff, and

		(6)  he suffered retribution for 13 months that resulted in his chapter 13 discharge from the Army in 1991.

3.  He provides:

* 6-page self-authored statement
* newspaper article
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 24 October 1989
* orders awarding him the 2nd and 4th awards of the Army Good Conduct Medal
* driver's license and Department of Veterans Affairs (VA) identification card
* five DA Forms 2166-8 (Enlisted Evaluation Reports (EER))
* four DA Forms 2166-7 (NCO Evaluation Report (NCOER))
* Certificate of Training
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* memorandum, subject:  Resolution of Unfavorable Information, dated 31 January 1990, with two accompanying DA Forms 2627
* orders reassigning him to a transition point and discharging him 

4.  In January 2012, he provided additional documents:

* revised version of 6-page self-authored statement
* Service Award Certificate
* Certificate of Appreciation
* letter from the U.S.A. Track and Field Level I Coach Program
* letter from the Dallas Basketball Officials Association
* résumé
* certificate for the U.S.A. Track and Field 2006 membership year
* Final Grade Report



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 in the rank of private/E-1 on 18 February 1977.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  His DA Form 2-1 shows he was advanced to:

* private/E-2 on 18 August 1977
* private first class/E-3 on 10 November 1977
* specialist four (SP4)/E-4 on 1 November 1978

4.  He was honorably discharged on 22 February 1979 for immediate reenlistment.  He reenlisted on 23 February 1979 in pay grade E-4.

5.  His DA Form 2-1 shows he was promoted to SGT/E-5 on 4 July 1980.  He was reduced to SP4/E-4 on 11 June 1981 as a result of nonjudicial punishment under Article 15, Uniform Code of Military Justice.

6.  He was discharged on 24 November 1981 for immediate reenlistment.  He reenlisted in pay grade E-4 on 25 November 1981.  His DA Form 2-1 shows he was again promoted to SGT/E-5 on 2 February 1982.

7.  He was discharged on 15 November 1984 for immediate reenlistment.  He reenlisted in pay grade E-5 on 16 November 1984.

8.  His DA Form 2-1 shows he completed training in MOS 76V (Materiel Storage and Handling Specialist) in 1985 and he was promoted to SSG/E-6 on 6 September 1986.

9.  He was discharged on 2 November 1987 for immediate reenlistment.  He reenlisted on 3 November 1987 in pay grade E-6.  He arrived in Germany on 22 March 1989 in duty MOS 76V.

10.  On 24 October 1989, he accepted nonjudicial punishment under Article 15 for disobeying a lawful command from his superior commissioned officer to provide information on a jack, or words to that effect, and making and uttering worthless checks to the Army and Air Force Exchange Station (AAFES) totaling $1,957.00.  His punishment consisted of reduction to pay grade E-5 and forfeiture of $400.00 pay for 2 months (suspended until 24 April 1990).  He did not demand trial by court-martial in the Article 15 proceedings, he requested a closed hearing, he declined a person to speak in his behalf, and he elected not to present matters in person.  He appealed the nonjudicial punishment and his appeal was denied.

11.  He provides the following EER's/NCOER's which show:

Period of Report
Duty Title
MOS/Rank
Score/Rating
8412-8506
Salvage Inspector
76V/11B (SGT)
124
8507-8606
Training NCO/Warehouseman
76V/76Y (SGT)
116
8606-8608
Assistant individual Training Evaluation NCO
76V/76Y (SGT)
121
8609-8708 
Materiel and Storage Handling Supervisor
76V/76Y (SSG)
123.5
8709-8802
Supply Sergeant
76V/76Y (SSG)
123.5
8806-8902
Supply Sergeant
76V (SSG)
Fully Capable Successful-3 Superior-3
8903-8908
Warehouse NCOIC Tech Supply Office
76V (SSG)
Fully Capable Successful-3 Superior-3
8909-8910
Company Supply Sergeant
76V (SGT)
Marginal
Fair-4/Fair-4
8911-9010
Section Chief, Parts Issue Section
76V (SGT)
Marginal
Fair-4/Fair-4
12.  On 6 December 1990, he received a letter of reprimand for driving while intoxicated (DWI).

13.  His complete discharge packet is not available.  On 27 March 1991, the separation authority approved the applicant's discharge for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, with issuance of an Honorable Discharge Certificate.

14.  He departed Germany on 11 April 1991.

15.  On 12 April 1991, he was discharged for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He completed 3 years, 5 months, and 10 days of active military service during the period under review and 14 years, 1 month, and 20 days of total active service.  Item 12a (Date Entered Active Duty This Period) of his DD Form 214 shows he entered this period of active duty on 25 November 1988 and completion of 9 years, 4 months, and 18 days of active service during the period covered by the report.

16.  Item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) of his DD Form 214 show he was discharged as a SPC/E-4.  Item 12f (Effective Date of Pay Grade) shows the effective date of pay grade as 18 January 1991.

17.  His DD Form 214 shows the entry "JHJ" in item 26 (Separation Code) and an RE code of 3 in item 27 (Reentry Code).  Item 28 (Narrative Reason for Separation) shows the entry "unsatisfactory performance."

18.  He submits a revised 6-page self-authored statement in support of his claim.

	a.  He lists four complaints:

		(1)  "was Article 15 necessary";

		(2)  "defamation of service member character";

		(3)  "integrity and ability to perform duties question"; and

		(4)  "failure to act on request to consider the mitigation [sic] circumstances."

	b.  In addition, he states retaliation, retribution, and harassment for 13 months resulted in him being forced out of the military under Army Regulation 635-200, chapter 13.



	c.  He alleges:

		(1)  He was a decorated NCO prior to his assignment to Germany who had won NCO of the quarter twice, SGT of the year, and competed for 1st Cavalry Division SGT of the year prior to leaving Fort Hood, TX.

		(2)  He wasn't working in his MOS of 76V at the time of the incident and he didn't receive any training as a supply sergeant.  His record will prove his military training was in MOS 11B and MOS 76V, but never in MOS 76Y (Unit Supply Specialist).

		(3)  The unsatisfactory performance entry on his DD Form 214 has affected his employment promotion status, status at AAFES from 1999 to 2005, deployment to Iraq, employment at the Department of Census, and VA benefits.

		(4)  He wasn't assigned to the unit during the property count inspection and he was not in Germany on the date of the inspection in question.  

		(5)  He was temporarily assigned to a unit to work outside of his MOS and perform duties as a supply sergeant until he received orders to his new location in Germany.  He was given keys to the unit supply office, arms room, the commander's office, and the first sergeant's (1SG)'s office to find the unit's equipment hand receipts that listed all items on hand.  The 1SG was on leave and a note was left by the unit commander who was stateside at the time.

		(6)  In October 1989, a 1LT – the daughter of a general officer – reviewed the hand receipt folder and noticed a jack was listed as missing with the company commander's initials.  The 1LT questioned him about the missing property (jack).

		(7)  He was given advice from a Judge Advocate General officer and he met with a lieutenant colonel to conclude the Article 15 proceedings.  He requested an open hearing, but no one was present in his behalf except a sergeant major.

		(8)  The nonjudicial punishment was unjust and disproportionate to the acts of misconduct or violation he allegedly committed.  The involvement of the 1LT's father (general officer) in this matter was undue influence.

		(9)  The nature of the accused disobedience was unjust.  His religion, race, personal conscience, or personal philosophy should never be used in any type of consideration of judicial or nonjudicial punishment either by Article 15 or in court-martial proceedings.

19.  References:

	a.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 provides 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 will be characterized as honorable or under honorable conditions.

	b.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or statuary directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The regulation states the SPD code of "JHJ" as shown on the applicant's DD Form 214 was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper reentry code to assign to Soldiers separated for this reason.

	c.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

	d.  Army Regulation 635-200 states that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard and includes a list of RE codes.

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army and they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable and they are ineligible unless a waiver is granted

	e.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions in regard to the defamation of his character and integrity, mistreatment by his superior officer, and lack of support from his chain of command are acknowledged.  However, his service record is void of evidence to support his claims.

2.  His service record is void of evidence and he has not provided any evidence which shows his rights were violated by members of his command or that he suffered retribution for 13 months.

3.  He contends he was falsely accused of not maintaining his finances or writing bad checks.  However, he accepted nonjudicial punishment on 24 October 1989 for disobeying a lawful command and for making and uttering worthless checks to AAFES.  He could have demanded trial by court-martial if he believed he was innocent of those charges.

4.  He contends he wasn't working in his MOS of 76V as a materiel storage and handling specialist at the time of the incident and he didn't receive training as a supply sergeant.  However, his EER's show his primary MOS as 76V and his secondary MOS as 76Y.  These reports show he successfully performed his duties as a supply sergeant.  His service record is void of evidence which indicates he did not receive proper training as a supply sergeant.

5.  His service record also shows he received a letter of reprimand for DWI.

6.  His administrative separation by reason of unsatisfactory performance under the provisions of Army Regulation 635-200 was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

7.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

8.  The evidence of record shows he was promoted to SSG on 6 September 1986 and he was reduced to SGT on 24 October 1989 as a result of an Article 15.

9.  His DD Form 214 which he authenticated with his signature shows he was discharged in the rank of SPC/E-4 with the effective date of his pay grade as 18 January 1991.  Although there is no disciplinary action on file in his military personnel record which shows the basis for his reduction to SPC/E-4, administrative regularity is presumed.  Therefore, there is no basis for restoring his rank to SSG.

10.  The evidence of record shows he was separated with an SPD code of "JHJ" and he was assigned an RE code of 3 in accordance with the governing regulation.

11.  The applicant's RE code is based on his reason for discharge and cannot be changed unless the applicant's narrative reason for separation is changed.  His narrative reason for separation was based on his unsatisfactory performance and he has not established a basis for changing his reason for discharge.  His service record is void of evidence which shows the RE code issued to him was in error or unjust.

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 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)                                         AR20110015473



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ABCMR Record of Proceedings (cont)                                         AR20110015473



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