IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110015990 


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 his discharge under other than honorable conditions be upgraded to a general discharge.  

2.  He states he does not believe his actions warranted the severity of not being able to reenlist in the Army.  He says as a young man in the Army, he made some mistakes.  He was an angry and confused young man that was not fully aware of the consequences of his actions.  He tried marijuana once while he was absent without leave (AWOL) and threw a grenade simulator in the street while off post.  He regrets what he has done in the past.  Since his discharge he has raised a family of five, owns his home, and has run a successful construction business.  He would like to reenlist in the Army and have a chance to redeem himself and be a Soldier again. 

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, and ten supporting statements.

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 7 March 1985.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) on two separate occasions for the same offense:  failing to go at the time prescribed to his appointed place of duty.

4.  On 8 May 1987, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b, acts or patterns of misconduct, specifically he listed the following summary courts-martial which are not contained in his military personnel file:

* 12 February 1987, violation of Article 86 (AWOL) 
* 20 March 1987, violation of Article 86 (Failure to Repair), Article 112 (Wrongful use of a controlled substance), Article 121 (Larceny) and Article 108 (Destruction of Government property)

5.  On 8 May 1987, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he waived his right to consideration of his case by an administrative separation board and to consult with and be represented by counsel.  He elected not to submit statements on his behalf.  

6.  He acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that as the result of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade of his discharge. However, he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  He also understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

7.  On 3 June 1987, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14-12b with an under other than honorable conditions discharge.  

8.  His DD Form 214 shows he was discharged on 19 June 1987 under the provisions of Army Regulation 635-200, chapter 14, misconduct - drug abuse with a characterization of service of under other than honorable conditions.  Item 27 (Reenlistment (RE) Code) of this form shows his RE code as "3."  He completed 2 years, 1 month, and 11 days of creditable active service with lost time from 20 January 1987 to 6 February 1987, 12 February 1987 to 26 February 1987, 20 March 1987 to 12 April 1987, and 15 May 1987 to 19 May 1987.  

9.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The ten supporting statements submitted by the applicant speak highly of his character.  Several authors acknowledged that he was a hard worker who always provided quality work.  Another author said he was trustworthy and guided by a strong moral compass.  All the authors agreed that he was dependable, loyal, and was always willing to help others.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14-12 establishes policy and prescribes procedures for separating members for acts or patterns of misconduct.  Specific categories of commission of a serious military or civil offense include abuse of illegal drugs.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Additionally, paragraph 14-3 states that an under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts and patterns of misconduct.
   
   b.  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.

   c.  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.  
12.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including 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 applicant's argument, in effect, that his discharge should be upgraded because it was too severe based on his actions was considered.  However, there is no evidence and he has not provided any to show that his discharge was rendered in error or unjustly.

2.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

3.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

4.  The applicant is advised that although no change to his discharge is recommended, this does not mean he is being denied reentry into the military.  While an RE-3 does apply to persons who are not considered fully qualified for reentry or continuous service there are provisions for a waiver of the disqualification.  If he desires to enlist he should contact a local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time and are required to process RE code waivers.




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)                                         AR20110015990





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ABCMR Record of Proceedings (cont)                                         AR20110015990



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