BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110024669 


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 discharge be upgraded to honorable.  He also requests that the narrative reason for his separation be changed to read "convenience of the government" and that his reentry eligibility (RE) code be change to "RE code 1."

2.  The applicant states he was misled when he was offered and earlier separation from the Army.  He had no idea of the lifelong error in judgment he made at the age of 19.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty).

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 21 November 1973 and upon completion of initial entry training he was awarded military occupational specialty 54B (Decontamination Specialist).

3.  He accepted nonjudicial punishment on 17 March 1975 for being absent from his place of duty and on 9 April 1975 for being absent from his place of duty on two separate occasions.  

4.  On 19 September 1975, he was found guilty, in accordance with his pleas, by a special court-martial of three specifications of being absent from his place of duty without authority, disobeying a lawful order from his superior noncommissioned officer, and for behaving with disrespect towards his superior noncommissioned officer.  He was sentenced to confinement for 45 days and reduction to the grade of private/E-1.

5.  On 3 November 1975, his commander recommended that he be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unfitness due to frequent acts of a discreditable nature.  He based his recommendation on the applicant's record of nonjudicial punishment and court-martial conviction.

6.  The applicant consulted with legal counsel and was advised of the basis for the proposed separation action.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to make a statement in his own behalf.  He also acknowledged he understood that as a result of the issuance of an undesirable discharge under conditions other that honorable, he might be ineligible for any or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

7.  On 5 November 1975, the appropriate authority approved the recommendation and directed that he be issued an Undesirable Discharge Certificate.  On 7 November 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness with his service characterized as under other than honorable conditions.  He completed 1 year, 9 months, and 21 days of creditable active service and accrued 56 days of lost time.  He was also given a RE code of 3 and a Separation Program Designator (SPD) code of "JLB." 

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200, chapter 13, in effect at the time, established the policies and provided procedures and guidelines for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) applied to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

10.  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.

11.  Army Regulation 635-200, 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.

12.  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.  This regulation provides 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.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes, including Regular Army RE codes, and states:

* RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable
* RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, provided all other qualifications are met

13.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific reasons for separating Soldiers from active duty and the separation codes to be entered on the DD Form 214.  The regulation in effect at the time of the applicant's separation provided that when a Soldier's authority and reason for separation was Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness, a separation code of JLB would be entered on the DD Form 214.

14.  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 JLB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting that his discharge be upgraded and the narrative reason for separation and RE code be changed.  

2.  The evidence of record confirms his separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Therefore, a change in the narrative reason for his separation is not warranted.

3.  Based on the fact that his record of indiscipline includes nonjudicial punishment on two occasions for a number of infractions, a court-martial conviction, and 56 days of lost time, his overall record of service did not support the issuance of a general or honorable discharge at the time and it does not support an upgrade of his discharge now.

4.  He was assigned an SPD code of JLB indicating he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness.  Therefore, the RE code of 3 was correctly entered on his separation document in accordance with governing regulations.  

5.  He implied that his error in judgment was due to his youth; however, age is not a sufficiently mitigating factor.  He completed initial entry training and served for over a year without recorded disciplinary incidents.  This shows he was mature enough to serve and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military obligations.

6.  Based on the foregoing, there is no basis to grant 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)                                         AR20110024669



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110024669



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1