IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012 

		DOCKET NUMBER:  AR20120002472 


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 change of his uncharacterized discharge to an honorable discharge with benefits or reentry into the Army.

2.  The applicant states he was found guilty of having a can of tobacco.  This happened after he had graduated from advanced individual training and while awaiting a plane ticket to go home to his Army National Guard (ARNG) station. He was an excellent Soldier and he had no problems with his job.  He comes from a family with a vast military background and he feels he let his family down.  He also feels the company commander made an example out of him and ruined his life for years to come.  He wants redemption, educational benefits, and the chance to reenter the Army.  He was treated unjustly and deserves a better reason for discharge.  Everyone else who was serving with him smoked or drank after work.

3.  The applicant did not provide any evidence.

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 ARNG on 29 July 1994 and he was assigned to the 269th Engineer Company, Live Oak, FL, as a welder.

3.  He entered active duty for training (ADT) on 28 December 1994 and he appears to have completed the required training and awarded military occupational specialty 44B (metal worker).

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was released from training as a Reserve of the Army and returned to his ARNG unit on 14 August 1995 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, by reason of entry level performance and conduct.  He completed 7 months and 17 days of creditable active service.  His DD Form 214 also shows in:

* Item 24 (Character of Service) - "Uncharacterized"
* Item 26 (Separation Code) - "JGA"
* Item 27 (Reentry Code) "RE-3"

5.  On 4 May 2008, the applicant applied to the Army Discharge Review Board (ADRB) for a change of his uncharacterized discharge to an honorable discharge.  On 4 March 2009, the ADRB considered his application based on a records review hearing.  At the time the applicant's record was also void of the specific facts and circumstances concerning the events that led to his discharge. After careful review of his application, military records, and all other available evidence, the ADRB determined his discharge was proper and equitable and as such, denied his request for a change in the character of service or the narrative reason for separation.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  It states:

	a.  Chapter 11, in effect at the time, governed the entry level status discharge. It provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have 

failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training, and must not have completed of more than 179 days of active duty on their current enlistment at the time his/her separation action is initiated.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  The regulation required an uncharacterized description of service for separation under this chapter.

	b.  An uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable condition is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  For the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings.  Upon enlistment, a Soldier qualifies for entry level status during the first 180 days of continuous active military service or the first 180 days of continuous active service after a service break of more than 92 days of active service.

	c.  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.

	d.  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.

7.  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 JGA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct.  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 JGA.

8.  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 Regular Army (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 applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 14 August 1995 under the provisions of Army Regulation 635-200, chapter 11, for entry level performance and conduct with an uncharacterized character of service.

2.  In the absence of evidence to the contrary, it appears while in training, the applicant lacked motivation and self-discipline and showed an inability to adjust to the military environment.  Accordingly, his immediate commander recommended his separation under the provisions of Army Regulation 635-200, chapter 11.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is also presumed his separation accurately reflects his overall record of service.

3.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrants an under other than honorable conditions discharge.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army.  A general characterization of service is not authorized.

4.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

5.  The appropriate SPD code associated with this type of separation is JGA and the corresponding RE code associated with this discharge is RE-3, both of which are correctly shown on his DD Form 214.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

7.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  The applicant is advised that although no change is being recommended to change his discharge or RE code, this does not mean that he is permanently disqualified from reentering military service.  The applicant is advised that RE-3 applies to persons who are not considered fully qualified for reentry or continuous service; however it does allow for a waiver of disqualification.  Therefore, 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 may 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)                                         AR20120002472



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ABCMR Record of Proceedings (cont)                                         AR20120002472



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